II
110th CONGRESS
2d Session
S. 3041
IN THE SENATE OF THE UNITED STATES
May 20, 2008
Mr. Feingold (for himself and Mr. Hagel) introduced the following bill; which was read twice and referred to the Select Committee on Intelligence
A BILL
To establish the Foreign Intelligence and Information Commission to assess needs and provide recommendations to improve foreign intelligence and information collection, analysis, and reporting, and for other purposes.
Short title
This Act may be cited as
the Foreign Intelligence and
Information Commission Act
.
Definitions
In this Act:
2005 National Intelligence Strategy
The term 2005 National Intelligence
Strategy
means the National Intelligence Strategy of the United States
of America released by the Director of National Intelligence on October 26,
2005.
2006 Annual Report of the United States Intelligence Community and 2006 Annual Report
The terms 2006 Annual Report of the United States
Intelligence Community
and 2006 Annual Report
mean the
2006 Annual Report of the United States Intelligence Community released by the
Director of National Intelligence in February 2007.
Commission
The
term Commission
means the Foreign Intelligence and Information
Commission established in section 4(a).
Congressional intelligence committees
The term congressional
intelligence committees
means—
the Select Committee on Intelligence of the Senate; and
the Permanent Select Committee on Intelligence of the House of Representatives.
Foreign intelligence, intelligence, intelligence community
The terms
foreign intelligence
, intelligence, and
intelligence community have the meaning given those terms in
section 3 of the National Security Act of 1947 (50 U.S.C. 401a).
Information
The term information includes information of relevance to the foreign policy of the United States collected and conveyed through diplomatic reporting and other reporting by personnel of the Government of the United States who are not employed by an element of the intelligence community, including public and open-source information.
Strategic Plan of the Department of State
The term
Strategic Plan of the Department of State
means the Strategic
Plan for Fiscal Years 2007–2012 of the Department of State and the United
States Agency for International Development revised on May 2, 2007.
Findings
Congress makes the following findings:
Accurate, timely, and comprehensive foreign intelligence and information are critical to the national security of United States and the furtherance of the foreign policy goals of the United States.
It is in the national security and foreign policy interest of the United States to ensure the global deployment of personnel of the Government of the United States who are responsible for collecting, reporting, and analyzing foreign intelligence and information, including specifically personnel from the intelligence community and the Department of State, as well as other elements of the Government of the United States, and that adequate resources are committed to effect such collection, reporting, and analysis.
The National
Security Strategy of the United States of America issued on March 16, 2006
summarized the National Security Strategy of the United States of America
issued on September 17, 2002 and provided that defeating terrorism
requires a long-term strategy and a break with old patterns
.
The National
Security Strategy of the United States of America issued on March 16, 2006
asserts that our diplomats must be able to step outside their
traditional role to become more involved with the challenges within other
societies, helping them directly, channeling assistance, and learning from
their experience
.
The 2005 National Intelligence Strategy and the 2006 Annual Report of the United States Intelligence Community identified 5 major missions of the intelligence community to support the national security requirements of the United States, the first 2 of which, defeating terrorism and preventing and countering the spread of weapons of mass destruction, are global and transnational in nature.
The third major mission identified by the 2005 National Intelligence Strategy and the 2006 Annual Report, bolstering the growth of democracy and sustaining peaceful democratic states, requires a global commitment of intelligence resources.
The 2005 National
Intelligence Strategy and the 2006 Annual Report identify as a major mission
the need to anticipate developments of strategic concern and identify
opportunities as well as vulnerabilities for decision makers
.
The 2006 Annual Report provides the following:
In a world
in which developments in distant reaches of the globe can quickly affect
American citizens and interests at home and abroad, the Intelligence Community
must alert policy makers to problems before they escalate and provide insights
into their causes and effects. Analysis must do more than just describe what is
happening and why; it must identify a range of opportunities for (and likely
consequences of) diplomatic, military, law enforcement, economic, financial, or
homeland security action. To support policymakers, the Intelligence Community
should develop, sustain, and maintain access to expertise on every region,
every transnational security issue, and every threat to the American
people.
.
[I]ntelligence
collectors and analysts provide a great deal of information to help
policymakers understand the spread of free institutions and the perils they
often face.
.
We still
need to re-balance, integrate, and optimize collection capabilities to meet
current and future customer and analytic priorities. Collection is . . . what
gives the [Intelligence Community] its
.competitive advantage
in
protecting the United States and its interests.
One
challenge to improving the coverage of emerging and strategic issues across the
Intelligence Community has been the diversion of resources to current crisis
support . . .
.
Collection
against terrorists in places like Iraq and Afghanistan took a substantial share
of the [Intelligence Community’s] resources and efforts in FY
2006.
.
With so
many [Intelligence Community] resources dedicated to the War on Terror and WMD
programs in closed regimes, the [Intelligence] Community’s collection efforts
still have to devote significant attention to potential or emerging threats of
strategic consequence.
.
On January 23,
2007, the Deputy Director of National Intelligence for Collection testified to
the Select Committee on Intelligence of the Senate that there is a need
to get the Intelligence Community back to what I grew up calling global
reach
, stating that we don’t have that today
. She
further testified that our challenge is . . . with [Congress’s] help [to
get back] to a place where we can do global reach, and pay attention to places
that we are not
.
On February 14,
2008, the Director of National Intelligence testified to the Select Committee
on Intelligence of the Senate that certainly current crisis support
takes a disproportionate share
of intelligence resources over emerging
and strategic issues.
The Strategic Plan of the Department of State—
provides that
National security starts overseas, and our mission is to create
conditions abroad that serve and protect American citizens and
interests.
;
provides as a
strategic goal that Our diplomatic and development activities will
reduce the threat or impact of violent conflict by developing early warning
. . . capability.
; and
establishes that
the Department of State will emphasize regional solutions to regional
problems and sustainable, long-term strategies to address complex
challenges
.
Establishment and functions of Commission
Establishment
There is established in the legislative branch a Foreign Intelligence and Information Commission.
Functions
The Commission shall—
evaluate all global strategies of the Government of the United States to collect foreign intelligence and information, including public and open source information, based on current and projected national security and foreign policy priorities; and
provide recommendations to improve the process for formulating such collection strategies;
evaluate the extent to which the Government of the United States coordinates foreign intelligence and information collection and analysis strategies across agencies and clandestine, diplomatic, military, and open source channels; and
provide recommendations to improve that coordination;
evaluate the extent to which the Government of the United States directs human and budgetary resources toward foreign intelligence and information collection and analysis across all agencies and through the interagency process based on collection and analysis requirements; and
provide recommendations to ensure that adequate resources are provided to meet such requirements;
evaluate the extent to which country missions participate in the interagency strategies and budget allocations for foreign intelligence and information collection, analysis, and reporting; and
provide recommendations for the relevant role of country missions;
evaluate the extent to which major missions identified in the 2005 National Intelligence Strategy and the 2006 Annual Report of the United States Intelligence Community, specifically related to global and transnational issues, have been supported with human and budgetary resources; and
provide recommendations for directing resources to such missions;
evaluate the extent to which the requirement, stated in 2005 National Intelligence Strategy and the 2006 Annual Report, to provide policy makers with intelligence and information to anticipate crises before they occur and respond accordingly has been supported with sustained human and budgetary resources, particularly in countries and regions traditionally underserved by the intelligence community; and
provide recommendations for directing resources to such requirement;
evaluate the extent to which requirements to collect foreign intelligence and information to anticipate crises or emerging threats have been met through existing collection and analytical capabilities; and
provide recommendations for improving the prepositioning of foreign intelligence and information collection and analytical capabilities to meet such requirements;
evaluate—
the extent to which foreign intelligence and information collection, including diplomatic reporting and public and open source information and analytical resources, have been disproportionately directed toward current crises, rather than toward predictive analysis; and
the impact of the allocation of resources on finished intelligence production and diplomatic reporting; and
provide recommendations for improving collection, reporting, and analysis of intelligence and information in accordance with the need for predictive analysis, finished intelligence production, and diplomatic reporting on emerging and strategic issues and on current crises;
evaluate all existing strategic plans for the collection, reporting, and analysis of information obtained through diplomatic reporting by the Department of State and other agencies and departments of the United States that are not elements of the intelligence community and the extent to which human and budgetary resources have supported such plans; and
provide recommendations to improve processes for establishing such strategies;
evaluate the extent to which out-of-capital embassy posts of personnel of the Department of State and other agencies and departments of the United States contribute to information collection objectives; and
provide recommendations for improving collection, analysis, and reporting capabilities of such posts or if such posts do not exist, provide an assessment of whether there is a need for the creation of such posts;
evaluate the extent to which the requirement, stated in the Strategic Plan of the Department of State, to provide policy makers information to anticipate crises before they occur and respond accordingly, has been supported with sustained human and budgetary resources, particularly in countries and regions traditionally underserved by the Department of State staff and posts; and
provide recommendations for directing resources to such requirements;
evaluate the extent to which the elements of the intelligence community, the Department of State, and other agencies and departments of the United States have promoted and developed language, cultural training, and other qualifications for effective collection of foreign intelligence and information in countries and regions to which the resources of the intelligence community and the positioning of country mission personnel have traditionally been limited; and
provide recommendations for improving such language and other qualifications;
evaluate the capabilities of the Government of the United States to collect and report on foreign intelligence and information, including public and open source information, and conduct analysis with regard to ungoverned and undergoverned countries and regions, terrorist safe havens, civil and regional conflicts, arms trafficking, stability, corruption, radicalization and marginalization of specific groups and human rights and governance concerns; and
provide recommendations to improve collection, reporting, and analysis with regard to such countries and regions and the issues described in subparagraph (A);
identify any regional and thematic gaps in foreign intelligence and information collection, analysis, and reporting; and
provide recommendations to overcome such gaps, including gaps related to the allocation of human and budgetary resources and processes for collection, reporting, and analysis of such intelligence and information;
identify impediments to directing human and budgetary resources toward collection, analysis, and reporting gaps, including the reasons for, and consequences of, such impediments; and
provide recommendations for overcoming such impediments;
evaluate policies of the elements of the intelligence community, the Department of State and other agencies and departments of the United States to ensure sustained deployment of qualified personnel in remote or hardship areas of strategic significance; and
provide recommendations for improving such policies; and
evaluate processes and mechanisms for reporting of information from country missions to policy makers and human and budgetary resources directed toward such reporting; and
provide recommendations to improve such reporting.
Members and staff of the Commission
Members of the Commission
Appointment
The Commission shall be composed of 14 members as follows:
Three members appointed by the majority leader of the Senate.
Three members appointed by the minority leader of the Senate.
Three members appointed by the Speaker of the House of Representatives.
Three members appointed by the minority leader of the House of Representatives.
One nonvoting member appointed by the Director of National Intelligence.
One nonvoting member appointed by the Secretary of State.
Selection
In general
Members of the Commission shall be individuals who—
are private citizens; and
have—
knowledge and experience in foreign information and intelligence collection, analysis, and reporting, including clandestine collection and classified analysis, diplomatic reporting and analysis, and collection of public and open source information;
knowledge and experience in issues related to the national security and foreign policy of the United States gained by serving as a senior official of the Department of State, a member of the Foreign Service, or an employee or officer of an appropriate agency or department of the United States or an independent organization with expertise in the field of international affairs; or
knowledge and experience with foreign policy decision making.
Diversity of experience
The individuals appointed to the Commission should be selected with a view to establishing diversity of experience with regard to various geographic regions, functions, and issues.
Time of appointment
The appointments under subsection (a) shall be made not later than 60 days after the date of the enactment of this Act.
Term of appointment
Members shall be appointed for the life of the Commission.
Vacancies
Any vacancy of the Commission shall not affect the powers of the Commission and shall be filled in the manner in which the original appointment was made.
Chair
The members of the Commission shall designate 1 of the voting members to serve as the chair of the Commission.
Quorum
Eight members of the Commission shall constitute a quorum for purposes of transacting the business of the Commission.
Meetings
The Commission shall meet at the call of the chair and shall meet regularly, not less than once every 3 months, during the life of the Commission.
Staff
In general
The chair of the Commission may, without regard to the civil service laws and regulations, appoint and terminate an executive director and, in consultation with the executive director, appoint and terminate such other additional personnel as may be necessary to enable the Commission to perform its duties. In addition to the executive director and 1 full-time support staff for the executive director, there shall be additional staff with relevant intelligence and foreign policy experience to help support the Commission’s work.
Selection of the executive director
The executive director shall be selected with the approval of a majority of the members of the Commission.
Compensation
Executive director
The executive director shall be compensated at the rate payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code.
Staff
The chair of the Commission may fix the compensation of other staff of the Commission without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for such personnel may not exceed the rate payable for level IV of the Executive Schedule under section 5315 of such title.
Experts and consultants
This Commission is authorized to procure temporary or intermittent services of experts and consultants as necessary to the extent authorized by section 3109 of title 5, United States Code, at rates not to exceed the maximum annual rate of basic pay payable under section 5376 of such title.
Staff and services of other agencies or department of the United States
Upon the request of the Commission, the head of any agency or department of the United States may detail, on a reimbursable or nonreimbursable basis, any of the personnel of that department or agency to the Commission to assist it in carrying out this Act. The detail of any such personnel shall be without interruption or loss of civil service or Foreign Service status or privilege.
Security clearance
The appropriate agencies or departments of the United States shall cooperate with the Commission in expeditiously providing to the members and staff of the Commission appropriate security clearances to the extent possible pursuant to existing procedures and requirements.
Powers and duties of the Commission
In general
Hearings and evidence
The Commission may, for the purpose of carrying out this Act—
hold hearings, sit and act at times and places in the United States and in countries in which the United States has a diplomatic presence, take testimony, and receive evidence as the Commission considers advisable to carry out this Act; and
subject to subsection (b)(1), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission considers necessary.
Subpoenas
Issuance
In general
A subpoena may be issued under this section only—
by the agreement of the chair of the Commission; and
by the affirmative vote of 6 members of the Commission.
Signature
Subject to subparagraph (A), subpoenas issued under this section may be issued under the signature of the chair or any member designated by a majority of the Commission and may be served by any person designated by the chair or by a member designated by a majority of the Commission.
Enforcement
In general
In the case of contumacy or failure to obey a subpoena issued under this section, the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.
Additional enforcement
In the case of any failure of any witness to comply with any subpoena or to testify when summoned under authority of this section, the Commission may, by majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney, who may bring the matter before the grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194).
Information from Federal agencies
The Commission may secure directly from any agency or department of the United States such information as the Commission considers necessary to carry out this Act. Upon request of the chair of the Commission, the head of such agency or department shall furnish such information to the Commission, subject to applicable law.
Postal services
The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.
Administrative support
The Administrator of General Services shall provide to the Commission on a reimbursable basis (or, in the discretion of the Administrator, on a nonreimbursable basis) such administrative support services as the Commission may request to carry out this Act.
Administrative procedures
The Commission may adopt such rules and regulations, relating to administrative procedure, as may be reasonably necessary to enable it to carry out this Act.
Travel
In general
The members and staff of the Commission may, with the approval of the Commission, conduct such travel as is necessary to carry out this Act.
Expenses
Members of the Commission shall serve without pay but shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Commission.
Gifts
No member of the Commission may receive a gift or benefit by reason of such member's service on the Commission.
Report of the Commission
In general
Interim report
Not later than 18 months after the members of the Commission are appointed under section 5(a), the Commission shall submit an interim report to the congressional intelligence committees setting forth the preliminary findings and recommendations of the Commission described in section 4(b).
Final report
Not later than 6 months after the submission of the report required by paragraph (1), the Commission shall submit a final report setting forth the final findings and recommendations of the Commission described in section 4(b) to the following:
The President.
The Director of National Intelligence.
The Secretary of State.
The congressional intelligence committees.
Individual or dissenting views
Each member of the Commission may include that member's dissenting views in a report required by paragraph (1) or (2) of subsection (a).
Form of report
The reports required by paragraphs (1) and (2) of subsection (a), including any finding or recommendation of such report, shall be submitted in both an unclassified and a classified form.
Termination
The Commission shall terminate 60 days after the submission of the report required by section 7(a)(2).
Nonapplicability of Federal Advisory Committee Act
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.
Funding
Transfer from the National Intelligence Program
Of the amounts available for the National Intelligence Program for fiscal year 2008, $5,000,000 shall be available for transfer to the Commission to carry out this Act.
Availability
The amounts made available to the Commission pursuant to subsection (a) shall remain available until the termination of the Commission.