The PRESIDENT pro tempore. Under the order previously entered, the Senate will proceed to the consideration of S. 2082, which the clerk will report.
The bill clerk read as follows:
A bill (S. 2082) to authorize appropriations for fiscal year 1995, for the intelligence activities of the U.S. Government and for the Central Intelligence Agency Retirement and Disability System, and for other purposes.
The Senate proceeded to consider the bill, which had been reported from the Committee on Armed Services, with amendments, as follows:
[The parts of the bill intended to be stricken are shown in boldface brackets, and the parts of the bill intended to be inserted are shown in italic.]
SECTION 1. SHORT TITLE.
This Act may be cited as the `Intelligence Authorization Act for Fiscal Year 1995'.
TITLE I--INTELLIGENCE ACTIVITIES
SEC. 101. AUTHORIZATION OF APPROPRIATIONS.
Funds are hereby authorized to be appropriated for fiscal year 1995 for the conduct of the intelligence activities of the following elements of the United States Government:
(1) The Central Intelligence Agency.
(2) The Department of Defense.
(3) The Defense Intelligence Agency.
(4) The National Security Agency.
(5) The National Reconnaissance Office.
(6) The Department of the Army, the Department of the Navy, and the Department of the Air Force.
(7) The Department of State.
(8) The Department of the Treasury.
(9) The Department of Energy.
(10) The Federal Bureau of Investigation.
(11) The Central Imagery Office.
SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.
(a) Specifications of Amounts and Personnel Ceilings: The amounts authorized to be appropriated under section 101, and the authorized personnel ceilings as of September 30, 1995, for the conduct of intelligence activities of the elements listed in such section, are those specified in the classified Schedule of Authorizations prepared by the committee of conference to accompany S. 2082 of the One Hundred Third Congress.
(b) Availability of Classified Schedule of Authorizations: The Schedule of Authorizations described in subsection (a) shall be made available to the Committees on Appropriations of the Senate and House of Representatives and to the President. The President shall provide for suitable distribution of the Schedule, or of appropriate portions of the Schedule, within the executive branch of Government.
SEC. 103. PERSONNEL CEILING ADJUSTMENTS.
(a) Authority for Adjustments: The Director of Central Intelligence may authorize the employment of civilian personnel in excess of the number of such personnel authorized for employment for fiscal year 1995 under section 102 of this Act, if the Director determines that such action is necessary to the performance of important intelligence functions, except that such number may not, for any element of the intelligence community, exceed 2 percent of the number of civilian personnel authorized under such section for such element.
(b) Notice to Intelligence Committees: The Director of Central Intelligence shall promptly notify the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate whenever the Director exercises the authority granted by subsection (a).
(c) Intelligence Community Defined: As used in subsection (a), the term `intelligence community' has the same meaning given to that term by section 3(4) of the National Security Act of 1947 (50 U.S.C. 401(4)).
SEC. 104. COMMUNITY MANAGEMENT ACCOUNT.
(a) Authorization of Appropriations: There is authorized to be appropriated for the Community Management Account of the Director of Central Intelligence for fiscal year 1995 the sum of $106,300,000. Of the amounts made available under this subsection, funds made available for the Advanced Research and Development Committee and the Environmental Task Force are authorized to remain available until September 30, 1996.
(b) Authorized Personnel Levels: The Community Management Account of the Director of Central Intelligence is authorized 221 full-time personnel as of September 30, 1995. Such personnel of the Community Management Account may be permanent employees of the Community Management Account or personnel detailed from other elements of the United States Government.
(c) Reimbursement: During fiscal year 1995, any officer or employee of the United States or a member of the Armed Forces who is detailed to the Community Management Account staff from another element of the United States Government shall be detailed on a reimbursable basis, except that any such officer, employee, or member may be detailed on a nonreimbursable basis for a period of less than 1 year for the performance of temporary functions as required by the Director of Central Intelligence.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
SEC. 201. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated for the Central Intelligence Agency Retirement and Disability Fund for fiscal year 1995 the sum of $198,000,000.
TITLE III--GENERAL PROVISIONS
SEC. 301. INCREASE IN EMPLOYEE COMPENSATION AND BENEFITS AUTHORIZED BY LAW.
In addition to amounts authorized to be appropriated by this Act for the salary, pay, retirement, and other benefits of Federal employees, there are authorized to be appropriated such additional or supplemental amounts as may be necessary to cover increases in those benefits authorized by law for fiscal year 1995.
SEC. 302. RESTRICTION ON THE CONDUCT OF INTELLIGENCE ACTIVITIES.
The authorizations of appropriations contained in this Act do not constitute authority for the conduct of any intelligence activity which is not otherwise authorized by the Constitution of the United States or by the laws of the United States.
SEC. 303. REPEAL OF RESTRICTION ON INTELLIGENCE COOPERATION WITH SOUTH AFRICA.
Section 107 of the Intelligence Authorization Act for Fiscal Year 1987 (Public Law 99-569) is repealed.
SEC. 304. REPORT REGARDING MANDATORY RETIREMENT FOR EXPIRATION OF TIME IN CLASS.
(a) Report Required: Not later than December 1, 1994, the Director of Central Intelligence shall submit to the congressional defense and intelligence committees of Congress a report setting forth a legislative proposal, coordinated as appropriate with elements of the intelligence community, which would provide for mandatory retirement for expiration of time in class, comparable to the applicable provisions of section 607 of the Foreign Service Act of 1980 (22 U.S.C. 4007), for all civilian employees of the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, and the intelligence elements of the Army, Navy, Air Force, and Marine Corps. The report shall include an assessment of the advisability and feasibility of instituting such a mandatory retirement policy, and of alternative means to achieve the objectives of a mandatory retirement policy. The report shall also include an assessment from the Secretary of Defense of the impact of a mandatory retirement policy for intelligence community civilian employees on all other Department of Defense civilian employees.
(b) Definitions: For purposes of this section--
(1) the term `intelligence committees of Congress' `congressional defense and intelligence committees' means the Committees on Armed Services of the Senate and House of Representatives, the Defense Subcommittees of the Committees on Appropriations of the Senate and House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives; and
(2) the term `intelligence community' has the same meaning given to that term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401(4)).
TITLE IV--CENTRAL INTELLIGENCE AGENCY
SEC. 401. AMENDMENT OF SECTION 4(a) OF THE CIA ACT OF 1949.
Section 4(a) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403e(a)) is amended in subparagraphs (A) and (C) of paragraph (5), by striking `not the result of vicious habits, intemperance, or misconduct on his part,' each place it appears.
SEC. 402. GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY.
(a) Position Established: The Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et seq.) is amended by adding at the end the following new section:
TITLE V--DEPARTMENT OF DEFENSE
SEC. 501. CENTRAL IMAGERY OFFICE.
(a) Amendments of the National Security Act of 1947: (1) Section 105(b)(2) of the National Security Act of 1947 (50 U.S.C. 403-5(b)(2)) is amended by striking `a central imagery authority' and inserting in lieu thereof `the Central Imagery Office'.
(2) Section 106(b) of such Act (50 U.S.C. 403-6(b)) is amended--
(A) in the subsection caption, by striking out `Central Imagery Authority' and inserting in lieu thereof `Central Imagery Office'; and
(B) by striking out `Central Imagery Authority' and inserting in lieu thereof `Central Imagery Office'.
(b) Civilian Personnel Management for the Central Imagery Office: (1) Subject to paragraph (2), the Secretary of Defense may exercise the authorities set forth in sections 1601 and 1604 of title 10, United States Code, pertaining to civilian officers and employees in the Defense Intelligence Agency, with respect to civilian officers and employees of the Central Imagery Office.
(2)(A) Civilian personnel administrative support for officers and employees of the Central Imagery Office shall remain a responsibility of the Defense Intelligence Agency.
(B) The authority provided in section 1604(e)(1) of title 10, United States Code, may, with respect to civilian officers and employees of the Central Imagery Office, be delegated by the Secretary of Defense only to the Deputy Secretary of Defense.
SEC. 502. PUBLIC AVAILABILITY OF CERTAIN MAPS, CHARTS, AND GEODETIC DATA.
Section 2796(b)(1)(C) of title 10, United States Code is amended by inserting `jeopardize or interfere with ongoing military or intelligence operations, or' after `disclosed,'.
SEC. 503. AUTHORITY TO ESTABLISH A NATIONAL PUBLIC INFORMATION CENTER.
Of the funds made available to the Secretary of Defense under this Act, the Secretary is authorized during fiscal year 1995 to expend not more than $3,000,000 to establish a National Public Information Center for the purpose of--
(1) surveying, collecting, storing, distributing, and presenting unclassified information, including information retained by Government agencies as of the date of enactment of this Act;
(2) providing support for training in decision-making, and for professional education in the Department of Defense and the intelligence community (as defined in section 3(4) of the National Security Act of 1947); and
(3) informing more broadly the American public.
TITLE VI--FEDERAL BUREAU OF INVESTIGATION
SEC. 601. DISCLOSURE OF CONSUMER CREDIT REPORTS FOR COUNTERINTELLIGENCE PURPOSES.
Section 608 of the Fair Credit Reporting Act (15 U.S.C. 1681f) is amended--
(1) by striking `Notwithstanding' and inserting `(a) Disclosure of Certain Identifying Information: Notwithstanding'; and
(2) by adding at the end the following new subsection:
`(b) Disclosures to the FBI for Counterintelligence Purposes:
`(1) Consumer reports: Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish a consumer report to the Federal Bureau of Investigation when presented with a written request for a consumer report, signed by the Director of the Federal Bureau of Investigation, or the Director's designee, which certifies compliance with this subsection. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that--
`(A) such records are necessary for the conduct of an authorized foreign counterintelligence investigation; and
`(B) there are specific and articulable facts giving reason to believe that the consumer whose consumer report is sought is a foreign power or an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
`(2) Identifying information: Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish identifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment, to the Federal Bureau of Investigation when presented with a written request, signed by the Director or the Director's designee, which certifies compliance with this subsection. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that--
`(A) such information is necessary to the conduct of an authorized counterintelligence investigation; and
`(B) there is information giving reason to believe that the consumer has been, or is about to be, in contact with a foreign power or an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
`(3) Confidentiality: No consumer reporting agency or officer, employee, or agent of such consumer reporting agency may disclose to any person, other than those officers, employees, or agents of such agency necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this subsection, that the Federal Bureau of Investigation has sought or obtained a consumer report or identifying information respecting any consumer under paragraph (1) or (2), nor shall such agency, officer, employee, or agent include in any consumer report any information that would indicate that the Federal Bureau of Investigation has sought or obtained such a consumer report or identifying information.
`(4) Payment of fees: The Federal Bureau of Investigation shall, subject to the availability of appropriations, pay to the consumer reporting agency assembling or providing credit reports or identifying information in accordance with procedures established under this title, a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching, reproducing, or transporting books, papers, records, or other data required or requested to be produced under this subsection.
`(5) Limit on dissemination: The Federal Bureau of Investigation may not disseminate information obtained pursuant to this subsection outside of the Federal Bureau of Investigation, except to the Department of Justice as may be necessary for the approval or conduct of a foreign counterintelligence investigation, or, where the information concerns a person subject to the Uniform Code of Military Justice, to appropriate investigative authorities within the military department concerned as may be necessary for the conduct of a joint foreign counterintelligence investigation.
`(6) Rules of construction: Nothing in this subsection shall be construed to prohibit information from being furnished by the Federal Bureau of Investigation pursuant to a subpoena or court order, or in connection with a judicial or administrative proceeding to enforce the provisions of this Act. Nothing in this subsection shall be construed to authorize or permit the withholding or information from Congress.
`(7) Reports to congress: On a semiannual basis, the Attorney General of the United States shall fully inform the Permanent Select Committee on Intelligence and the Committee on Banking, Finance and Urban Affairs of the House of Representatives, and the Select Committee on Intelligence and the Committee on Banking, Housing, and Urban Affairs of the Senate concerning all requests made pursuant to paragraphs (1) and (2).
`(8) Damages: Any agency or department of the United States obtaining or disclosing credit reports, records, or information contained therein in violation of this subsection is liable to the consumer to whom such records relate in an amount equal to the sum of--
`(A) $100, without regard to the volume of records involved;
`(B) any actual damages sustained by the consumer as a result of the disclosure;
`(C) if the violation is found to have been willful or intentional, such punitive damages as a court may allow; and
`(D) in the case of any successful action to enforce liability under this subsection, the costs of the action, together with reasonable attorney fees, as determined by the court.
`(9) Disciplinary actions for violations: If a court determines that any agency or department of the United States has violated any provision of this subsection and the court finds that the circumstances surrounding the violation raise questions of whether or not an officer or employee of the agency or department acted willfully or intentionally with respect to the violation, the agency or department shall promptly initiate a proceeding to determine whether or not disciplinary action is warranted against the officer or employee who was responsible for the violation.
`(10) Good-faith exception: Any credit reporting agency or agent or employee thereof making disclosure of credit reports or identifying information pursuant to this subsection in good-faith reliance upon a certificate of the Federal Bureau of Investigation pursuant to provisions of this subsection shall not be liable to any person for such disclosure under this title, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.
`(11) Limitation of remedies: The remedies and sanctions set forth in this subsection shall be the only judicial remedies and sanctions for violation of this subsection.
`(12) Injunctive relief: In addition to any other remedy contained in this subsection, injunctive relief shall be available to require compliance with the procedures of this subsection. In the event of any successful action under this subsection, costs together with reasonable attorney fees, as determined by the court, may be recovered.'.
The PRESIDENT pro tempore. Under the previous order, the committee amendments will be agreed to en bloc.
The committee amendments were agreed to en bloc.
The PRESIDENT pro tempore. Under the previous order, there is a 60-minute time limitation on debate on the bill, with up to 20 minutes of that time for opening statements of the managers. Certain amendments as stated on page 2 of today's Calendar of Business are the only amendments that will be in order. They will be considered under the time limits specified.
Mr. DeCONCINI addressed the Chair.
The PRESIDENT pro tempore. The Senator from Arizona [Mr. DeConcini].
Mr. DeCONCINI. Mr. President, I ask unanimous consent Joe Sanchez be permitted the privilege of the floor during the course of S. 2082.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. DeCONCINI. Mr. President, I am pleased to join with my distinguished colleague and vice chairman of the Select Committee on Intelligence, Senator Warner, is presenting to the Senate the intelligence authorization bill for fiscal year 1995.
Senator Warner and I came to the leadership positions on this committee at the beginning of this Congress, and we will both relinquish our positions at the end of this Congress. I am leaving the Senate, of course, and Senator Warner's 8-year term on the committee will expire. Although our tenure in these positions has been relatively limited, the last 2 years have been active and, I believe, productive years for the committee. A great deal of the credit for this goes to the senior Senator from Virginia. We have worked well together in addressing what is a complex and often problematic area: the activities of U.S. intelligence agencies.
Senator Warner has been a partner and we have supported each other, compromised, and found what we felt was the best interests for the intelligence community in the oversight responsibilities of our committee.
This has been and continues to be a difficult period for the intelligence community whose role continues to evolve and whose capabilities continue to adjust in the wake of the cold war. Clearly, the world remains an uncertain and dangerous place. Our policymakers face problems that seem more difficult
to deal with, more intractable, than those of the cold war period. It is no longer so easy to predict where U.S. military forces will be deployed round the world or to predict the nature of the threat they can expect to face. Few would argue, in the face of such uncertainty, that we can afford to eliminate our capacity to gather information when such information might mean the difference between life and death of our military service men and women, or mean we take the wrong diplomatic path on a matter of crucial importance to our security.
At the same time, I think most would agree there is room to scale back an intelligence community which over a period of years has grown to considerable proportions largely to deal with the threat to United States security posed by the Soviet Union and its Warsaw Pact allies.
I think the Senate should appreciate the degree to which the intelligence community has been scaled back. This will, in fact, be the fifth consecutive year that the President's budget request for the National Foreign Intelligence Program will be cut by the Congress. Overall, the authorization recommended by the committee for fiscal year 1995 is over 13 percent less than the 1990 appropriation for national intelligence in real terms--fiscal year 1995 dollars since 1990. More importantly, we are recommending cuts to terminate, rather than just scale back, some programs and activities which have significant out-year costs; so, in these cases, a dollar saved in fiscal year 1995 means additional savings in future years.
There have been even greater reductions in personnel. In 1992, Congress mandated an across-the-board cut of 17.5 percent in civilian personnel to be achieved by fiscal year 1997. These reductions are well on track. Indeed, recent administration decisions will extend the downsizing to achieve reductions of at least 22.5 percent by the end of the decade. Personnel costs represents a significant proportion of the overall budget, and therefore we cannot bring the budget under control without bringing the number of intelligence employees down as well.
While the level of funding recommended by the committee for fiscal year 1995 remains classified pursuant to executive branch policy, suffice it to say we are recommending a reduction of almost $300 million to the administration request for national intelligence activities. The administration's request itself represented a slight reduction over the amount appropriated for the previous fiscal year when adjusted for inflation.
Thus, Mr. President, we are recommending a budget somewhat below last year's appropriated level. It is not a deep cut but it is a cut nonetheless. We have reduced in places we can and have added funding in a few places where we think it is needed. The bottom line is that we believe this level of funding will preserve a substantial, flexible, and forward-looking intelligence capability adequate to support the national security needs of the country during the next fiscal year.
Mr. President, I must say to my colleagues that while I do not see the justification for increases in intelligence in the near term, it is becoming increasingly difficult to find places to cut, particularly given the current assumptions and philosophical underpinnings that form the basis for program and budget decisions by the executive branch in this area.
This is one of the principal factors which prompted me to support the creation of the new Commission on Intelligence, which we will propose as an amendment to this bill. Senator Warner conceived of this and believed it was the right thing to do earlier than I did, I must admit. And I have been convinced by his leadership that, indeed, we should have such a commission.
I think the time has come for the role of the intelligence agencies to be reevaluated. I think the time has come for the assumptions which underlie the resourcing of intelligence to be reexamined. A new consensus needs to be developed.
The executive branch could do this if it wanted. The oversight committees of the Congress could do this if they wanted. But I believe that a review conducted by either branch would not have the credibility with the other or, for that matter, with the American people.
What is needed, in my view, is a hardheaded, objective review of the fundamentals by a group of outsiders, by smart people, respected people who have no vested interest in preserving the status quo and no ax to grind. If Senator Warner and I can leave the committee having set this in motion, I believe we will have left a very valuable legacy.
Mr. President, before giving the floor to our distinguished vice chairman, let me briefly summarize the key provisions in this bill.
Principally, of course, the bill authorizes appropriations for fiscal year 1995 for: First, the intelligence activities of the U.S. Government; second, the Central Intelligence Agency Retirement and Disability System; and third, the community management account of the Director of Central Intelligence. It also authorizes the personnel ceilings as of September 30, 1995, for the intelligence activities of the United States and for the community management account of the Director of Central Intelligence. The funding and personnel levels which are authorized for intelligence activities are contained in a classified schedule of authorizations that are given the force of law by the bill itself.
The bill also would repeal the limitation regarding intelligence cooperation with South Africa contained in section 107 of the Intelligence Authorization Act for fiscal year 1987. Motivated by a concern that the intelligence services of South Africa were playing an instrumental role in preserving the apartheid system against internal opposition forces, in 1986 Congress prohibited the United States intelligence agencies from engaging in any form of cooperation with the Government of South Africa `except activities which are reasonably designed to facilitate the collection of necessary intelligence.'
With the advent of majority rule in South Africa, the committee believes it appropriate to repeal the longstanding statutory limitation on intelligence cooperation. Indeed, it is in the interests of the United States to have the flexibility to cooperate as may be appropriate with the newly elected South African Government to foster the development of democratic institutions and processes. U.S. intelligence may be able to contribute. We can provide assistance to the intelligence and security services which emerge under the newly elected South African Government to establish internal management and administrative systems. We can help these agencies improve accountability and oversight, and, as may be applicable, to adapt to any legislative oversight that may be established.
The bill also contains a provision requiring appointment by the President, with the advice and consent of the Senate, of the General Counsel of the Central Intelligence Agency. The committee believes that the position of CIA General Counsel warrants Senate confirmation. Not only would this requirement provide greater assurance that the position would not be politicized, it would improve the stature and importance of the office within the Agency itself.
The bill also contains a provision to permit the Secretary of Defense to provide civilian personnel management for the Central Imagery Office consistent with existing authority for the Defense Intelligence Agency subject to certain conditions.
I will address the Aldrich Ames espionage case and the legislative steps the committee has approved to address CIA-FBI counterintelligence problems after the statement of my good friend and vice chairman of the committee, Senator Warner.
Mr. WARNER addressed the Chair.
The PRESIDENT pro tempore. The senior Senator from Virginia [Mr. Warner] is recognized.
Mr. WARNER. Mr. President, I express my appreciation to my distinguished friend and partner, Senator DeConcini. We have worked together as full partners. In some areas, we have had disagreements, but we have always been able to reconcile what we thought was in the best interest of our country and that of the Senate. I hope as the record of the achievements of this committee during the 2-year period under his stewardship are examined, from a historical perspective, that they will reflect credit on this Senator as he departs his career in the U.S. Senate.
I am pleased to join our distinguished chairman in recommending approval of S. 2082, the intelligence authorization bill for the fiscal year 1995. While I would have preferred, and indeed I supported at various times, a higher funding level for intelligence activities, I nevertheless believe this bill is an outstanding step forward in our Nation's intelligence capabilities.
Although it contains a reduction of approximately $300 million from the administration's request, which I supported, it does provide funding in excess of the budget request in four very critical areas:
First, intelligence support to U.S. military operations. Ever since our performance in the gulf region, we have been conscious of the need to increase the ability to get real-time intelligence to our troops in forward deployed areas. General Schwarzkopf, I think, made a lasting contribution in this area when he came back from that war and debriefed the Senate and the House on the need to have increased support for our military operations, and we have made an advancement in that area.
Second, activities to reduce the critical problem of the proliferation of weapons of mass destruction. This is a subject on which I and many other Members of this body have spoken very often and, indeed, the Presiding Officer, who is a member of the Senate Armed Services Committee, has addressed the subject of proliferation of weapons of mass destruction.
There is no threat to our Nation or any other nation in this world of any greater magnitude than the proliferation of chemical, biological and, indeed, weapons with fissionable material. I am glad that we made advances in that area.
Third, efforts to improve our counterintelligence capability. I anticipate a very lively and constructive debate on this bill today with regard to a piece of legislation that has been very carefully considered by our committee and, indeed, by a number of Senators not on our committee. The regrettable incidence of the Ames case brought to our attention the need to make legislative--and I emphasize legislative--improvements in this area. For many years, the executive branch--and, indeed, it extends over a number of Presidencies--have tried to deal with these issues by Executive order and other regulatory procedures. It simply, Mr. President, has not worked effectively, and we saw that in the crisis that occurred as a result of the Ames case.
Fourth, the advanced R&D initiatives which will keep our intelligence capabilities on the cutting edge. This Nation is recognized the world over as a superpower and much of that is dependent upon our ability to maintain a strong research and development base to place our Nation in the very forefront of technology across a wide range of subjects. And, indeed, this week we saw quite a controversy over a certain building. We may have occasion to address that later. But there was no dispute throughout that controversy of the essential work that is being performed by the persons who will hopefully soon enter that complex of buildings and continue their efforts to keep the United States on the cutting edge of technology.
At this point, however, I would like to sound a note of caution concerning any further reductions to the intelligence budget. I believe that we are dangerously close to compromising the ability of our U.S. intelligence community to perform its many obligations.
The overall level of intelligence spending has been declining in real terms for each of the last 5 years. In fact, the budget submitted this year by the administration contained a real reduction of approximately 2 percent from last year's appropriated level. Our committee further reduced that request.
Overall funding for the intelligence community has shrunk by over 13 percent in real terms since 1989. Personnel cuts have been even more dramatic. Between 1991 and the year 2001, it is projected that we will achieve a force reduction of 25 percent if we continue as now planned. I personally, just speaking for myself, am not confident that that is the right direction to go. Nevertheless, that is the course we are on under the current administration's plan.
If achieved, one-quarter of the positions that existed as of 1991, in the intelligence community, will be eliminated in this decade. These reductions are taking place against a backdrop of increased conflict around the world and ever-increasing reductions in the U.S. defense budget. At such a time, our need for intelligence could well be even greater, and I say that because of the historical record of how intelligence performs as a force multiplier in terms of our military structure.
It is elementary, Mr. President. Take a battalion of fighting men and women on the front. To the extent that they have intelligence superior to the adversary they face, the fewer we will need to engage that adversary, or the fewer assets we would need to repel that adversary.
So intelligence does serve as a force multiplier and, indeed, it serves to protect, to afford a greater measure of protection to our forward deployed fighting forces.
Overall funding for the intelligence community has shrunk, as I say, by 13 percent in real terms since 1989. I question whether or not we should remain on this course, but nevertheless we have this budget this year. It has been thoroughly reviewed by our committee, and we are here today to proceed on the bill.
These reductions are taking place, Mr. President, against a backdrop of increased conflict around the world and ever-increasing reductions in our U.S. defense budget. Several weeks ago, the Intelligence Committee received testimony from the Defense Intelligence Agency which revealed that there are currently 64 trouble spots or, in their terminology, `hot spots,' worldwide, geographic areas in which there is killing taking place, where there is open and active combat.
It is interesting to compare this level of 64 today to that of, say, maybe 7 or 8 years ago when the DIA computed that there were less than half that number of trouble spots in the world.
That indicates the level of difficulty that we face in terms of our leadership role as a nation, and our responsibility as a legislative branch to give adequate support to the men and women of the Armed Forces, who, from time to time, are called upon to engage in the cause of freedom in these hot spots around the world.
Such a world presents the intelligence community with new, diverse and complex challenges. Instead of the overwhelming focus we had for so many years on the Soviet Union and the Warsaw Pact, the intelligence community is now called upon to provide expertise and information on trouble spots around the globe. Maintaining a viable intelligence capability in a rapidly changing world is not easy. It is not inexpensive.
Some have argued that the intelligence budget should be subject to reductions proportionate to those taken in the overall defense budget. I disagree. Again, I point out historically that intelligence has served as a force multiplier of our military capability. Intelligence provides the U.S. military and U.S. policymakers with a critical edge over our potential adversaries. I ask my colleagues to consider how many lives were saved, for example, during World War II, due to the fact that the United States and Great Britain were able to crack the codes of both the German and the Japanese forces. More recently, United States intelligence played a critical role in helping United States and allied forces defeat Iraq with a minimum of losses to our side compared to those experienced by the enemy.
The idea that intelligence is a force multiplier that should be protected in a period of declining budgets is certainly not a new one. It is proven historically. Let me make another historical reference. In 1947, as the U.S. military was drawing down in the aftermath of World War II, Adm. Chester Nimitz wrote the following:
It is my desire to preserve, to the maximum practicable extent, the Directorate of Naval Communication organization and strength and, if possible, to get them more help. The greater the contraction of the Navy, the more important our DNC and communication intelligence become.
That was his view of intelligence in 1947, and it is my view of intelligence here in 1994.
Admiral Nimitz believed then, indeed as I do today, that intelligence and communication capabilities are more, not less important during a period of declining military budgets and force structure. I will strongly oppose any efforts to further reduce this intelligence budget.
As the chairman mentioned, we will be offering two important amendments to this authorization bill, and indeed, we have formed our partnership to try to move the cutting edge in this very important area. We made those movements, we drew up this bill, and we submit it to our colleagues today based on many hours of long and careful analysis, not only of the situation today, not only of the situation generated by the Ames case, but historically the problems that have confronted the intelligence agencies of our Government. Likewise, we draw on the very valuable work generated by our predecessors in the leadership on the Intelligence Committee, Senator Cohen and Senator Boren, and indeed a certain committee under their jurisdiction which provided very valuable insight in this area.
The first is legislation to strengthen the counterintelligence capabilities of the United States. In the wake of the arrest of Aldrich Ames, it became clear that legislative changes were needed to assist the Government in deterring potential spies and in detecting espionage activity when deterrence fails. Since today's turncoat traitors are primarily motivated, indeed, according to their own admissions, largely by the dollar bill, the legislation which the committee adopted focuses on the financial activities of individuals with security clearances in our intelligence system, providing for Government access to financial and travel records. These initiatives draw upon groundwork laid by Senators, as I said, Boren and Cohen, the former chairman and vice chairman of our committee.
Now, at the heart of this initiative is a recognition that in going into the financial background of those who have volunteered --and every one of them is a volunteer--to take on these tasks in special areas of the highest secrecy in our Government, we will have the ability to probe into their personal affairs, particularly their financial affairs. And it is my hope they understand we do this to protect them and to protect their work, and it is essential in terms of our national security that they yield some measure of their own personal privacy to achieve a balanced ability by this country to protect ourselves from spies within our own ranks.
We believe that this legislation is a necessary step forward in our efforts to prevent the disclosure of sensitive information critical to our national security. We must do all we can to stop future turncoats in our country from betraying our national secrets.
The second amendment which we will be sponsoring is the Warner-Graham-DeConcini bill to establish a Presidential commission to examine the roles and missions of the intelligence community. A post-cold-war bottom-up review of our intelligence agencies is long overdue. In fact, the review which we are calling for would represent the first time since the passage of the National Security Act of 1947--that piece of legislation which created the Central Intelligence Agency--that any Presidential commission will have examined overall the CIA and the other entities associated with it.
I am most appreciative of the important contributions made to this legislation, an idea that I came up with with both Senators Graham and DeConcini.
I should like to thank the chairman for the cooperative spirit with which we conduct the committee's work, especially the budget deliberations.
As with any piece of legislation, the bill before us today does not contain everything that the chairman or I might desire. Rather, it is the result of extensive deliberations and, indeed, a measure of compromise. The committee has produced a very balanced and appropriate set of recommendations, and I commend our chairman for his effective leadership. Also, I express my thanks now to the very dedicated staff that we have on the Senate Intelligence Committee.
Mr. DeCONCINI. Mr. President, I now send to the desk under the previous order a managers' amendment offered by Senator Warner and myself and ask for its immediate consideration.
The PRESIDENT pro tempore. The clerk will report the amendment.
The bill clerk read as follows:
The Senator from Arizona [Mr. DeConcini], for himself and Mr. Warner, proposes an amendment numbered 2553.
Mr. DeCONCINI. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDENT pro tempore. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under `Amendments Submitted.')
Mr. DeCONCINI. Mr. President, the committee amendment that Senator Warner and I now offer would insert, with one modification which I will explain momentarily, the text of S. 2056--which was reported by the committee on June 30--as a new title of the authorization bill. In our view, this amendment is significant legislation which would vastly improve the ability of the Government to detect and prosecute espionage.
It is, quite simply, what needs to be done in the wake of the Ames case.
We all recognize that no law will stop a person bent on betraying his or her country from finding a way to do so. But there are things we can do to make a person think twice about it, that increase the odds they will be detected and successfully prosecuted. That is the objective of this amendment.
It is a moderate proposal, which carefully balances the Government's needs against the civil liberties of our citizens. Indeed, there were a number of proposals suggested to the committee which were not accepted because of civil liberties concerns. At the same time, this amendment is focused on those gaps in the system where experience has shown there are problems.
This legislation was originally introduced by Senator Warner and myself at the request of the administration. With the exception of one provision which I will address in a moment, the administration fully supports it. The Intelligence Committee reported the bill by a vote of 15 to 2, and the two Senators who voted not to report the bill did so on the basis of the administration's reservations about the one section I alluded to. In short, the amendment has widespread, bipartisan support.
Before summarizing the provisions of the amendment as a whole, let me say a few words about section 3, regarding the coordination of counterintelligence activities, which the administration has not endorsed and which is the section we have modified somewhat since S. 2056 was reported.
The language at issue in this section requires the heads of departments and agencies within the executive branch to notify the Federal Bureau of Investigation immediately when they have information which indicates that classified information is being, or may have been deliberately disclosed to a foreign power or an agent of a foreign power; and then to consult with the FBI with respect to appropriate follow-up actions. The language goes on to say that once the FBI undertakes an investigation, it shall be given complete and timely access to the records and employees of the agency concerned.
The purpose of this language is to ensure that departments and agencies do not take administrative actions on their own initiative which interfere with or preclude possible criminal prosecution, and to ensure that once a criminal investigation has been opened, the FBI receives complete and timely cooperation.
This is not to say that a criminal investigation by the FBI will always be warranted by these circumstances or that it will not be outweighed by other U.S. interests. The point of this language is only to ensure that all of these interests get sorted out by the agencies concerned without one department or agency unilaterally taking actions that delay or prejudice a possible criminal investigation.
My colleagues may well assume that what this language contemplates is already standard operating procedure. That is certainly what I thought.
But I regret to say, Mr. President, that this is not the way the system has operated. The Select Committee on Intelligence has now held several hearings on this subject. Our staff has been briefed on 36 cases over the last 10 years where coordination has been a problem. We have found there are cases where the failure to bring the FBI in a timely way has delayed, and sometimes even precluded, a criminal prosecution. We have found cases where the failure to provide the FBI with access to records and personnel in a timely manner has delayed bringing culprits to justice. We also found cases where the performance of the FBI, in coordinating its investigative activities with affected departments and agencies, has itself been deficient.
In this regard, the bill as modified imposes reciprocal obligations upon the Federal Bureau of Investigation to work closely with other departments and agencies on counterintelligence matters.
Mr. President, the American people have a right to expect that departments and agencies will work cooperatively with the FBI on matters of national security. They have a right to expect that bureaucratic pettiness and turf fights will not impede or preclude bringing a spy to justice.
The administration has taken the position that this legislation is unnecessary. It points to a new Presidential directive which creates a bureaucratic structure to ensure timely and thorough coordination of counterintelligence activities and asks us to give it time to work. I would like to believe that creating new interagency committees and assigning an FBI agent to the CIA are going to take care of this problem.
But, Mr. President, if past experience is any indication, this is not going to solve the problem.
As a matter of fact, over 10 of them over the last 25 or 30 years. We have had memoranda of understanding, some quite explicit, arising out of incidents where espionage cases have had great publicity, and we have had bureaucratic structures. Yet, the problem persists. The Ames case is the best example today where there was in fact the 1988 memorandum of understanding, that now most recently has been declassified, which specifically directed the agency, in the case the CIA, to turn over all information at any time that they had a suspicion that any of their employees might be giving information to someone of another foreign government. Yet, Mr. Ames operated from 1985 until 1993. It was not until 1993, actually in 1991, when finally a task force was joined together between the FBI and the CIA, but even then the FBI did not have all of the information which the CIA had.
So there has to be a better way. And memoranda of understanding, even though they can be explicit, in bureaucratic structures have not worked, and we have to take a more aggressive position.
There is not one word in what we propose that is inconsistent with what the administration says are its objectives. Rather, this language complements and strengthens the bureaucratic structure established by the administration.
I might add that in the unlikely event there might be a situation where a serious counterintelligence matter could not be notified to the FBI, the bill would permit the President to authorize a waiver of the requirement so long as the oversight committees were advised within 30 days that there had been such a waiver--not what the facts or the circumstances were, just that the waiver had been exercised--and when national considerations permitted, were advised of the reason which prompted such a waiver by the President.
So we took into consideration the administration's caution in infringing on the Executive right to have such confidentiality in counterespionage. The President can do so.
Senator Warner and I, as well as a solid majority on our committee, have come to believe that legislation is needed here. I remain hopeful that the administration will reach the same conclusion by the time we get to conference.
Now, let me turn to the rest of the amendment and summarize what is in it.
Section 2 requires the President to issue a new Executive order within 180 days setting minimum uniform standards for access to classified information. At present, these standards vary from agency to agency. The bill also provides that the new Executive order shall require written consents from all persons with security clearances permitting authorized investigative agencies to have access to their financial and travel records during the period of their access to classified information and 5 years thereafter in accordance with the criteria established by the bill. The new Executive order also will require reporting of certain financial and travel data by persons in particularly sensitive positions. Both the nature of the reporting and the determination of what positions require such reporting are left to the discretion of the executive branch.
This was brought clearly out in the Ames case, Mr. President, where there was some information that had been derived by investigators within the CIA, never turned over or very lately turned over, to the FBI. And yet, there was not any disclosure that was required by law that brought this to their attention. This would be different.
Section 2 permits authorized investigative agencies to obtain financial and travel records if certain limited criteria are met and such request is certified by at least an assistant secretary level of the department or agency concerned. Private or governmental entities who receive such requests are prohibited from divulging that such a request has been made to others.
I have already described a portion of section 3 on counterintelligence coordination.
In addition, this section establishes a national counterintelligence policy board under the National Security Council to develop policy for the President in this area and to resolve disputes between agencies. The board would be chaired by the Attorney General and consist of the Secretary of Defense, Director of Central Intelligence, the Director of the FBI, and the Assistant to the President for National Security Affairs.
Section 4 of the amendment gives the FBI access to consumer credit reports in counterintelligence cases based upon a letter from the FBI Director or Deputy Director certifying that the subject of the request is an agent of a foreign power. Recipients of such requests are prohibited from divulging such requests to the subject or others. Similar legislation passed the Senate last year but was never enacted.
Section 5 of the amendment gives the Attorney General authority to provide rewards up to $500,000 for information leading to espionage arrests, similar to the authority the Attorney General has in the terrorism area.
Section 6 gives Federal courts jurisdiction over espionage where the conduct involved took place outside the United States. This has occasionally been an obstacle in the past.
Section 7 makes the criminal forfeiture provisions for espionage consistent with those provided by law in the drug area. In essence, this provision would allow a court to substitute other property of a defendant in an espionage case where the defendant has deliberately moved the proceeds of his or her espionage activities beyond reach of the court.
Section 8 permits the attorney General to deny retirement benefits to employees of the U.S. Government convicted of espionage in foreign courts provided the Attorney General certifies that due process was provided and sufficient evidence to prove a violation of U.S. law. There has been at least one case where the United States was compelled to pay retirement benefits in these circumstances.
Section 9 is a particularly significant change to existing law, Mr. President. It would require that physical searches for intelligence purposes be carried out pursuant to a court order, rather than pursuant to the approval of the Attorney General.
It may come as a surprise to many of my colleagues to learn that the executive branch carries out warrantless physical searches within the United States for intelligence purposes. Such searches are not common, but they happen. Indeed, the Attorney General authorized such a search in the course of the Ames investigation.
The Intelligence Committee believes there are compelling reasons to establish statutory procedures for the conduct of physical searches to collect foreign intelligence information similar to those used for electronic surveillance under the Foreign Intelligence Surveillance Act of 1978.
In the absence of legislation, the executive branch will continue conducting physical searches without a judicial warrant based upon the approval of the Attorney General. The committee does not believe this arrangement provides adequate protection for the constitutional rights of U.S. citizens. Searches carried out under a court order would provide such protection. The special court established under the foreign intelligence surveillance act of 1978 is comprised of seven Federal district court judges appointed by the chief justice of the United States. The statutory requirements which must be met by the Government before an order approving an electronic surveillance can be issued by this court are detailed and comprehensive. The constitutionality of such orders has been upheld by every Federal court which has considered the issue since 1978.
The constitutionality of warrantless intelligence searches, on the other hand, remains unresolved. There is no authoritative judicial opinion upholding the legality of such searches. Any defendant in an espionage case who is confronted with evidence obtained by an intelligence search can be expected to challenge the legality of such search. Should a court rule against the Government, a successful prosecution could be seriously jeopardized.
Such a ruling would also leave those Federal officers in the Justice Department and FBI who approved and carried out such search potentially liable to civil suits by the defendant for violation of his or her civil rights. The committee is advised that such officers routinely purchase personal liability insurance at their own expense to guard against such contingency.
Thus, from the standpoint of protecting the constitutional rights of Americans, from the standpoint of bringing greater legal certainty to this area, from the standpoint of avoiding problems with future espionage prosecutions, and from the standpoint of protecting Federal officers and employees from potential civil liability, we think the legislation is desirable and necessary.
Finally, Mr. President, section 10 of the amendment provides for a new criminal offense making it a misdemeanor for Government employees knowingly to remove classified materials to an unauthorized location with the intent to retain them at such location. This form of misconduct was evident in the Ames case. In fact, many in Government believe this to be a widespread practice.
Indeed with an interview I had with Mr. Ames, he indicates there is no security in taking documents in and out of the Central Intelligence Agency. Others have confirmed that as well. There is no inspection of a bag, or a purse, or a briefcase as one walks in or out, and there is no penalty, by law, if you take something outside. There was, under Admiral Turner as the CIA director, a spot check of bags that came in and out with employees of the CIA. There was some resentment, but indeed it made people think that you should not be taking classified information home without authority. And now the law would be clarified.
The unauthorized removal and retention of classified materials at an unsecure location inherently increases the risk that such materials will be disclosed to unauthorized persons. Some employees may even decide to stockpile classified documents waiting for the opportunity to sell them.
Senator Kerrey offered this amendment at markup, and I believe it makes sense. There ought to be criminal sanctions for this type of conduct in order to provide greater deterrence and to provide a grounds for prosecution in appropriate cases.
Also, Mr. Ames is a person who had a well-known drinking problem. And yet, outside of several references and one counseling session, was there anything but promotion in job ratings, even though there was a considerable case and Mr. Ames was very clear about his drinking problem. He did not drink all the time, but when he drank, apparently he really drank, to the extent that he would pass out at functions and on the way home be taken to the hospital. Yet, there was no reprimand of Mr. Ames. There was caution and one counseling session.
So there is obviously need of better security, better leadership at the CIA to institute policies and directions that are going to make a difference.
The Ames interview further convinced me that we can do a better job in the counterintelligence area. However, we need to have one agency clearly in charge of investigation, an agency with trained investigators. Investigators at the CIA are not criminal investigators. They are investigators. FBI investigators are trained differently. They understand what they have to go after when they need or might need to do a criminal investigation. This amendment, that is proposed by Senator Warner and myself, would provide this role to the FBI in this statute.
No more MOU's, no more Executive orders that are well intended and meant to be effective, but indeed permit an Ames case, a Howard case, a Pollard case, and many other cases to continue to function.
Will this legislation stop this? I cannot say to my colleagues that it will. But, indeed, it is going to place the best criminal investigators that we have available to the Federal Government into this process at the very earliest point of view and, as I pointed out, there is ample protection; if the President believes that there is some instance where they do not want the information turned over to the FBI, he can so waive.
The Congress and the American people want and deserve accountability. This amendment that is offered in behalf of the Senator from Virginia and myself, I believe, does just that.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Madam President, again, I wish to compliment the distinguished chairman. We did work together on this. There were times when I think individuals of less determination and perhaps less conviction might have folded their tents and just gone along with what appeared to be the wisdom that has prevailed for so many years on this issue. But we want to break new ground because we think it is essential that new ground be broken.
I am proud of the achievements that we have made thus far, and I am ever so hopeful today that our colleagues will accept the challenge that we are going to present to them.
Madam President, this legislation is a result of many months of work by the Intelligence Committee in concert with the executive branch to correct what we perceive as a number of problems revealed in the Ames case.
I am pleased to report that with the exception of section 3, which I will address specifically here momentarily, the administration supports this very important piece of legislation. Unfortunately, the Ames case makes painfully clear that the espionage threat against the United States did not end with the cold war. There are still people, American citizens, American citizens entrusted with the highest secrets that this country possesses; yes, there are citizens who will for one reason or another step forward and share those secrets and thereby compromise the security of our great Nation.
Unlike the spies of the forties, fifties, and sixties who were often motivated by ideology or perhaps other intellectual motivations, today's turncoats are overwhelmingly motivated by the dollar.
For this reason, our counterintelligence legislation focuses on the financial activities of persons with access to this body of highly classified information. This legislation provides valuable tools for deterring espionage activity and detecting violations when deterrence fails.
The amendment before the Senate would require all executive branch employees who are granted a security clearance to consent to Government access to their financial and travel records, and this can be done on a spot-check basis, without notice.
Employees with access to particularly sensitive classified information--and for those following this debate, there are a number of levels of classification of information, so we are talking about particularly sensitive classified information, as determined by our President--would be required to provide reports on their financial and travel information.
A key provision of this bill prohibits the private sector--for example, banks, brokerage houses, and travel agencies--from disclosing that the Government has made a request for access to financial and travel records. This provision prevents employees from being tipped off that they are under scrutiny.
Madam President, employees with access to classified information must be willing to accept certain personal disclosures as a condition of employment. In an area as sensitive and critical as the Nation's security, the scales must tip in favor of protecting our Nation's secrets. Our bill accomplishes that objective.
Other key aspects of this bill include a provision granting the Attorney General the authority to provide rewards of up to $500,000 for information leading to espionage arrests and a provision extending the criminal forfeiture provisions of the drug enforcement statute to the proceeds of espionage.
This legislation is certainly not a panacea. It will not be an absolute deterrence against those who, for what reason we know not, decide to spy and betray our Nation.
There is no law, Madam President, no framework of law today, tomorrow, or in the future, which can keep pace with the vagaries of human nature. But this legislation is a strong step forward to try to stop or limit espionage activities.
If the authorities provided in this legislation had been in effect during the investigation of the Ames case, it is my judgment that in all likelihood this case could have been detected and brought to prosecution, perhaps years earlier.
At this point, I would like to acknowledge the pioneering efforts by Senators Boren and Cohen in this area. I am hopeful that momentarily the Senator from Maine will join us and speak to this legislation.
In 1989, these two Senators established a panel of outside experts--it was known as the Jacobs Panel--to study the statutory framework for the conduct of U.S. counterintelligence activities and to recommend legislative proposals. Many of the recommendations of the Jacobs Panel are incorporated in this amendment.
It is interesting--I have asked those two distinguished Senators why they did not press forward at that time with these initiatives, and they can speak best for themselves--but apparently they felt that, with the demise of the Soviet Union and the Warsaw Pact, there was not the feeling of urgency in this country to address this issue.
I acknowledge that in all likelihood, these two Senators would have gone forward had they thought the time was right to pursue counterintelligence legislation. Well, the time is right now. And I am pleased to join with Senator DeConcini and the majority of the members of our committee to bring it forward.
Madam President, I would like to address the provision of this bill which has generated, somewhat to my surprise, a large measure of controversy. Section 3 deals with the coordination of counterintelligence activities within the executive branch.
It became clear during the committee's examination of the Ames case that there were serious and longstanding problems with coordination between the CIA and the FBI regarding the investigation of counterintelligence cases, including the case of Aldrich Ames.
It is my belief that when the after action reports are completed on the Ames case, we will find that the failure of the CIA and the FBI to fully cooperate on this investigation, that failure of cooperation, in measure, was responsible for a delay of several years in positively identifying Aldrich Ames as a spy.
Section 3 of the committee amendment attempts to correct this coordination problem by more clearly defining the conditions under which the FBI must be notified of possible compromises of classified information.
And, as a corollary, there is a comparable provision for notification by the FBI of other departments and agencies of such counterintelligence information as might pertain to them.
This section specifically requires agency and department heads to ensure that the FBI is notified whenever it becomes apparent that classified information has been deliberately disclosed to a foreign government or agent of a foreign government. And, in turn, the FBI, as I mentioned previously, is required to keep an affected agency advised of the progress of FBI counterintelligence investigations of any employee of that agency.
Mr. President, the reason for my putting into legislation the provisions of section 3 dealing with CIA-FBI cooperation originates in the long history of fractious relations between the CIA and FBI on counterintelligence agencies.
Frankly, no matter how hard we have tried to pursue an analysis of why these two groups of highly dedicated employees, albeit in different agencies, albeit on different payrolls, but who have equally strong motivations to stop counterintelligence activities, equally strong motivations to stop it and to protect this Nation, why they have not been able to work together, I think, will forever remain a mystery. Today the situation appears to be better than in the past. But, nevertheless, a problem remains.
The committee has been briefed on numerous cases in which the CIA's failure to notify the FBI in a timely manner concerning a counterintelligence case has led to a delay and/or compromise of an investigation.
I would like to quote from a 1986 Senate Intelligence Committee report entitled, `Meeting the Espionage Challenge: A Review of the United States Counterintelligence and Security Program.'
Madam President, the report states:
Another aspect of counterintelligence awareness is the knowledge by agency security officials of when to bring a matter to the attention of a U.S. counterintelligence agency. In the Edward Lee Howard case, CIA security officials failed to alert and involve the FBI in a timely fashion.
If I may repeat that:
In the Edward Lee Howard case, CIA security officials failed to alert and involve the FBI in a timely fashion.
That is the U.S. Senate. Many of the Members here today were here in 1986 addressing this counterintelligence problem specifically.
The report goes on:
The CIA has taken steps recently to guard against a recurrence of this problem.
So the Senate apparently received certain assurances that the problem would not occur again.
Continuing to quote from the report:
The FBI should continue to work closely with security officials of all U.S. Government agencies to ensure that they understand the requirements and guidelines. A good example is the Pollard case, where the Naval Investigative Service brought in the FBI at an early stage. The committee is pleased that the Navy has given a commendation and a monetary award to the official who was responsible for bringing to the FBI the Pollard case promptly when certain questionable behavior was first observed.
The lessons of the Howard and Pollard cases should be extended to all departments and agencies that handle highly sensitive information. Interagency procedures for reporting suspicious conduct to the FBI should be strengthened.
Moreover, the Howard and Pelton cases demonstrate that former employees with grievances or financial problems can compromise our most sensitive national security programs. Individuals who choose to work in positions as sensitive as those occupied by a Howard or a Pelton should expect to be held to a higher security obligation than personnel with access to less sensitive information. Therefore, the FBI should be informed when employees with access to extremely sensitive information resign or are dismissed under circumstances indicating potential motivation for espionage.
The decision as to whether the circumstances justify investigations in varying degrees should be made by the FBI in light of its counterintelligence experience, not by the employing agency. Interagency procedures should be established to address borderline cases.
This body spoke ever so clearly in 1986 about the need for the executive branch to recognize the potential for these problems and to take such steps as were necessary. Nevertheless, the delays in apprehending Aldrich Ames occurred for the very, very reason that was recited in the 1986 Senate report.
Successive administrations--and indeed this is not a political problem. This is not a Clinton administration problem; this is not a Bush administration problem; this is not a Reagan administration problem, exclusively. It goes back throughout the long history of the working relationship between these agencies.
Successive administrations have attempted to solve this problem by Executive orders, memorandums of understanding between various agencies and, to a lesser extent, legislation. Since 1947, there have been no less than 10 attempts to deal with this issue. And yet, the Ames case shows us that lack of coordination continues.
Madam President, may I take the time of this body to read the 10 instances in which either legislation or an Executive order or a memorandum of understanding were utilized in attempts to solve this coordination problem.
First, the National Security Act of 1947; then Section 603 of the Intelligence Authorization Act of fiscal year 1990; then Executive Order 12333; then National Security Directive 47; National Security Council Directive 5; Attorney General-DCI procedures and FBI CI Activities Overseas, 1982; FBI-CIA MOU Regarding Activities of CIA Officers of CI Concern, 1988; Attorney General Guidelines for FBI Espionage Investigations of U.S. Diplomatic Mission Personnel Abroad, 1990; FBI-CIA Supplemental MOU regarding CI Activities Abroad, 1992; CIA-State MOU on CI Response Abroad, 1989.
Time and time again, the executive branch has tried to deal with this problem, but the problem still exists.
Madam President, it is clear that we need legislation in this area now, and I am ever so hopeful that this body will agree with us today.
This history documents why another administrative fix to this problem simply will not work. Any administrative solution would be far too dependent on the personalities of the individuals in charge of CIA and the FBI at the various times that these cases come up.
We have individuals of the best of intentions at the head of the CIA today and at the head of the FBI. But tomorrow--and I am not suggesting that either may be replaced, but eventually all are replaced and there is a rotation of these individuals who serve as the head of these respective agencies and departments. That is the nature of how the executive branch functions. We cannot have these important areas dependent upon the respective personalities of the individuals in charge of the various departments and agencies.
Those personalities may interact at one period of time in a very cooperative spirit. Yet the same personalities may not cooperate in a subsequent situation. So this important area cannot depend on personalities and good intentions. It must be based on bedrock, sound law. Any administrative solution would be far too dependent upon the personalities of the individuals in charge of the CIA and FBI if we continue the course that we are following at the present time.
For months the chairman and I negotiated in the best of good faith with top administration officials concerning legislative language which would be acceptable to the administration. We went to the White House repeatedly. We came very close to agreement. But unfortunately, for reasons that can best be explained by those who wish to espouse the administration's position, the administration still feels they can solve this problem with yet another Executive order.
The potential damage to our national security is far too great for the Senate to ignore this issue any longer. We must go on record acknowledging that there is a problem. The problem is with us today--it will be with us tomorrow and well into the future--of individuals who want to break ranks and spy. And the only way to correct it in my judgment, and that of the distinguished chairman of this committee and the majority, is to do it legislatively.
Madam President, I yield the floor.
Mr. KERREY addressed the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Madam President, I yield such time as may be required by the Senator from Nebraska.
The PRESIDING OFFICER. The Senator from Nebraska is recognized.
Mr. WARNER. Madam President, might I add the Senator from Nebraska has taken a very active role in the affairs of the committee, and the chairman and I are grateful.
Mr. KERREY. I thank my friend from Virginia.
Madam President, the distinguished Senator from Virginia has covered many of the areas that are in this piece of legislation. I intend to deliver a short statement in support of the bill, indicating what is in it that I think is important, and also discuss briefly the National Reconnaissance Building and the process leading to its declassification.
I rise in strong support of the bill that is now before us, the intelligence authorization bill for fiscal year 1995. In the course of crafting this bill, the Intelligence Committee has had outstanding leadership from Senator DeConcini and Senator Warner.
It is not easy to produce an intelligence authorization these days. The cold war consensus about the roles and missions of the intelligence community now seems far away. There is real controversy today about what the community should be doing and how it should be organized, and the Intelligence Committee could not be deaf to that controversy. At the same time, our task was more finite: to authorize intelligence programs and activities that will protect America and warn our policymakers about the forces that threaten our country, and also to guide the change that is ongoing in the intelligence community. Our committee essentially funds the President's request in monetary terms. We disagree with some of the administration's priorities for specific programs, but we do not disagree about the dangers of the new world disorder and the need for good intelligence to warn us about them.
We read often in the press that the intelligence community is stuck in a cold war posture and has changed little since the fall of the wall. Do not believe it. Under Jim Woolsey's leadership the Intelligence agencies are covering new targets and providing more value to policymakers than ever. But further change is needed, and this bill supports change in two important ways.
First, we need change in the way the community does counterintelligence, the way it catches spies and keeps secrets. The Ames case is the most recent event to demonstrate that we need to give law enforcement authorities every possible tool to catch and prosecute those who would betray their country. That is why there are provisions in this bill to require that the FBI be promptly informed when espionage is apparent. At the same time, the bill recognizes that in some particularly sensitive cases, the information relating to the case might have to be very closely held, to protect sources or vital information. So the bill gives the President flexibility to waive the FBI notification requirement on what the committee hopes will be rare occasions.
Second, we need to support the intelligence community's efforts to come to grips with this changed world by giving them and ourselves the benefit of the insights of a broad range of experts and national leaders. This bill contains provisions to create a joint Presidential-congressional commission to do just that. Senator Warner and Senator DeConcini recognize that it is time for a fundamental review of the roles and missions of the intelligence community, and they also correctly understand that the administration and Congress can not stop their ongoing business to conduct the root-and-branch review that is required. So I agree with my chairman and vice chairman that we need a joint commission, and that it should take about a year to go back to first principles. My hope for this commission is that it will contribute a new direction for intelligence, but I think it has an even bigger task--an even more important task, and that is to restore the consensus in our country that we need intelligence, that the country must be able to collect secrets and analyze secrets and act covertly in the world, and that some secrets are worth keeping. The cold war consensus on national security and secrecy has badly frayed over the years. If in the course of discussion surrounding the commission work, a new consensus can be formed,
I will be proud to have been an original cosponsor of this provision.
Madam President, I would also like to comment on a defense intelligence issue that has created much controversy in the Senate and in the country: the new headquarters of the National Reconnaissance Office in Chantilly, VA.
Many of our colleagues are angry about the size and scope of the project and about the fact that the Intelligence Committee was not given clear and consistent information about the project. Further, the declassification of the project on Monday came, inevitably, as a surprise to many, and nobody likes to be surprised by a project of this size. A reaction seems to be forming to punish the intelligence community or the NRO or CIA because of this project. Let me suggest, two points.
First, we should calm down and count to 10 before we punish in this case, because the intelligence community and administration have acted very responsibly in recent days in bringing this matter into public view.
Second, in focusing on punishment and on closing barn doors long after the horses have gone, we may overlook the larger issue here, which is the fundamental question of what should be classified in order to protect our country from the real enemies that threaten us, and what information should be declassified so the public can know how their money is spent.
Do not misunderstand me. I agree with my colleagues who are concerned about the size and lavishness of this project, and I would have much preferred that the NRO would have approached Congress about this project years ago in a straightforward manner, like any GSA or military construction project. I also believe that our congressional oversight could have been much better. But things could be worse. First, I do not think there was a conscious effort here to deceive Congress. Second, at least we have some buildings to show for the money. The buildings are excess to the NRO's need, they are nicer than most Government buildings, but they exist and they are on 70 acres of land that will only grow in value.
We all know that this Congress and this Government very often puts a lot of money into things that have no value and at the end of the day people say we just wasted our money. In this case at least we have a hard asset to show for it. We have had expensive Federal court houses go way over budget without anywhere near the criticism that we are now heaping on the intelligence community. To go public when you know criticism is coming is, in my view, a brave act.
When it became apparent to Director Woolsey and Deputy Defense Secretary Deutch that the Senate Intelligence Committee had problems with this project, they agreed with this Senator that public disclosure and public discussion were the way to go. they did not have to do that. They could have kept the wraps on this building. But they took the bold decision to open it up the administration backed them. As a consequences we are able to discuss it in public. That decision required a willingness to part with the old ways of the cold war and ask anew the question: given the new threat environment, what do we keep from our enemies and as a result the American people and what do we fully disclose?
We should greet a bold decision like this one with praise. Instead, we and all together, the news media seize on what they told us and bludgeon them for their honesty.
I will say, if I was a senior intelligence official and witnessed the pillorying of the NRO of the last few days, it would be a cold day in hell before I voluntarily declassified anything. That is not the response we should seek to create, if we are truly interested in having an intelligence community that can protect America against today's threats.
When we encourage the intelligence agencies to hunker down and go to the ground, we also postpone the establishment of a new consensus in America that some secrets are important to our security and must be kept secret.
By declassifying information that no longer needs to be kept secret and by demonstrating that the Government does not use secrecy to cover up its embarrassments, we are giving greater protection to the secrets that must be kept. Therefore, Madam President, I urge that we encourage this process of declassification and openness, rather than lurk in the undergrowth waiting to ambush whoever practices it. Our most urgent business in this field is to determine and rank the threats that face America today and make sure our intelligence resources are properly dedicated against them.
Our next priority, almost as important, is to reconstruct the national consensus that intelligence is necessary and secrets must be kept. Before we rush to punish the intelligence community about this headquarters, let us think about these larger matters and how our reaction affects them.
Madam President, again, I want to thank the distinguished Senator from Virginia and the distinguished Senator from Arizona. The distinguished Senator from Virginia has been a very calm and reassuring hand in all this. As always, in cases like this where you are charting a new ground--and that is exactly what is happening; there is no roadmap in this transaction. We are literally into territory where there is no previous precedent we can cite and say, `Well, we are going to do it like we did in 1991, 1990 or some previous times. In these kinds of environments, what is needed is a steady hand on the tiller, somebody who knows how to operate a compass and stay calm when the ambush occurs, when the firefight begins.
I must say, I am very proud to be able to say that the distinguished Senator from Virginia, all the way through this process, was able to say, `OK, men, let's stay calm here. We've got a problem. There is a way to solve this problem. We don't need to rush to judgment. We don't need to be impulsive. We don't need to do things quickly here. Understand, this is something vital to the national security interest of our country.'
Our business is to make sure our intelligence communities can do their job to protect the American people from real threats in the world. I appreciate very much the leadership of the Senator from Virginia.
Mr. COHEN. Madam President, the chairman and vice chairman have described their amendment in detail, and I will not repeat what they have said.
I would like to recount some of the history behind this legislation, though, to emphasize that it is not a reflexive response to events that have been in the headlines in recent months.
When Boris Yeltsin gave his memorable speech to a joint session of Congress in 1991, he bluntly declared, `No more lies.' Perhaps because of the thunderous applause that followed, many Americans seem to have misheard him to say `no more spies.' We now know better.
The point, though, is that we should have known all along. If anyone got the impression that the end of the cold war meant there would be no one left to come in from the cold, they did not get that impression from Moscow. After the collapse of the Berlin Wall and the Warsaw Pact, Soviet and later, Russian intelligence officials clearly stated that they were still hard at work and even were getting more aggressive at such matters as stealing business secrets.
The CIA, the FBI, and others warned that the end of the cold war would produce no decline in espionage against the United States and, indeed, might lead to an increase since some Americans might be more comfortable selling secrets to countries that no longer appear to threaten us.
During the 1980's, more spies were unmasked than during any other decade in our history. Most were clerks, analysts, military personnel, and other low- to mid-level employees with access to our most important secrets and a willingness to sell those secrets to the highest bidder. Only one-tenth of them were recruited. Nine out of ten were volunteers, initiating contact with a foreign intelligence service.
When Senator Boren and I became chairman and vice chairman of the Intelligence Committee, we were very familiar with these issues, having participated in the committee's counterintelligence review following the arrest of the Walker spy ring, which resulted in the committee's 1986 report, Meeting the Espionage Challenge. Determined to see that this challenge was, in fact, met and not just studied, we convened a panel of wisemen with significant experience in government, the law, and industry to identify ways to improve the Nation's counterintelligence system without sacrificing the personal liberties our national security apparatus is meant to protect.
This panel--which was led by Eli Jacobs and included such prominent individuals as Warren Christopher, Lloyd Cutler, Arthur B. Culvahouse, Sol Linowitz, Adm. Bobby Imman--worked closely with the intelligence committee and the Intelligence Community for a year in reviewing past espionage cases and identifying means to deter, detect, and prosecute such cases in the future. It is important to note that this effort was not a response to a single incident like the Ames case. Rather, it involved a systematic review of a large number of cases that occurred over a period of decades.
And based upon the committee's work and the Jacob Panel's report, we introduced legislation designed to deter Americans from spying and detect and prosecute those who were not deterred.
Given the pecuniary motives of today's spies, that bill sought to improve the chance that warning lights would start flashing when Americans handling highly classified information lived beyond their means. Or, as was noted in a 1990 statement that is particularly pertinent in light of the Ames cases, `if a guy goes from a Vega to a Jaguar in a year's time, something's wrong' and should be detected.
We concluded that the FBI should be given greater access to financial and foreign travel records of persons who are cleared to handle top secret information and for 5 years thereafter. While constituting a moderate loss of privacy for those handling highly classified information, this would create an important deterrent to those tempted to spy and a new tool to catch those who do. Being entrusted with the Nation's secrets is a privilege for which the Nation can and should ask reasonable sacrifice.
A second significant change we proposed was to establish uniform requirements for access to highly classified information, which today can vary widely from one agency to another. According to a recent report by a panel appointed by the CIA and the Pentagon, information on a certain technology was subject to discretionary controls by the Department of Energy but protected with deadly force by one of the military services. Similar, if less extreme, variations exist in agencies' requirements for obtaining security clearances.
Beside creating wasteful redundancies, this permits weak links in the chains of security guarding our secrets. It even opens the opportunity for a person to shop around for a security clearance. Jonathan J. Pollard, who pleaded guilty in 1986 of spying for Israel, was denied employment by the CIA in 1977 because of security concerns only to be hired 2 years later as a civilian Navy intelligence analyst.
Other measures identified included better enabling the Government to confiscate spies' ill-gotten gains; establishing jurisdiction in U.S. courts for espionage acts committed abroad; allowing monetary rewards for information leading to the arrest or conviction of spies or prevention of espionage; closing gaps in our espionage laws; and subjecting foreign intelligence physical searches to the same court order process required for electronic surveillance under the Foreign Intelligence Surveillance Act.
It is quite possible that had that legislation been adopted when it was first introduced in 1990, Aldrich Ames would have been caught much sooner. Equally important, unknown persons now spying or considering doing so could be caught or deterred before causing grievous and costly damage.
Unfortunately, as the cold war thawed, the resulting flood of goodwill for our former enemies swept away support for improving counterintelligence. While thoroughly vetted by the Jacobs Panel, public hearings by the Intelligence Committee, and Justice Department reviews, the bill languished in the 101st and 102d Congresses, misperceived as the remnants of an anachronistic cold war agenda.
At the time, we asked whether it would take another security disaster such as that involving Felix Bloch before Congress would be spurred to take action. As the Ames case regrettably reveals, the answer was yes.
After Mr. Ames reminded us that spying for dollars will continue as long as we entrust secrets to fallible human beings, there finally was a broader recognition of the need for Congress to remedy our counterintelligence system.
Among others, Senators DeConcini and Warner, the present chairman and vice chairman of the Intelligence Committee, introduced legislation that picked up provisions of the bill Senator Boren and I introduced in the 101st, the 102d and the 103d Congresses. Senators DeConcini and Warner were kind enough to allow Senator Boren and me to testify to their committee on these various bills, and the legislation the committee reported in June--now before the Senate as the pending amendment--paralleled even more closely the bill we have pursued for so long, with further improvements made by the constructive suggestions of the Justice Department and the intelligence community.
While it is regrettable that it required a major counterintelligence failure, it is gratifying that this legislation has now garnered the kind of broad support in Congress and the executive branch it has long merited. And I commend the chairman and vice chairman of the Intelligence Committee for taking advantage of the favorable circumstances for pressing this legislation forward. It is long overdue, and we should act now before this subject moves out of the public's mind and off Congress's legislative agenda.
I urge my colleagues to support the amendment.
Mr. WARNER. Madam President, I thank my distinguished colleague. Those kind remarks, coming from the Senator from Nebraska, have a particular meaning, because he has displayed a measure of courage which has received appropriate recognition in years past.
I am grateful that he is willing to continue to serve on the Intelligence Committee as I and Senator DeConcini step down. It is my hope that perhaps he will have the opportunity to take a leadership role in the affairs of that committee in the years to come.
Mr. WARNER. Madam President, I send an amendment to the desk in the second degree. I do so on behalf of the Senator from Maine, Mr. Cohen, and I ask for its immediate consideration.
The PRESIDING OFFICER. Without objection, the amendment is in order at this time. The clerk will report.
The bill clerk read as follows:
The Senator from Virginia [Mr. Warner], for Mr. Cohen, proposes an amendment numbered 2554 to amendment No. 2553.
Mr. WARNER. Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the amendment, add the following:
SEC. . REPORTS ON FOREIGN INDUSTRIAL ESPIONAGE.
(a) In General: (1) In order to assist Congress in its oversight functions with respect to this Act and to improve the awareness of United States industry of foreign industrial espionage and the ability of such industry to protect against such espionage, the President shall submit to Congress a report that describes, as of the time of the report, the following:
(A) The respective policy functions and operational roles of the agencies of the executive branch of the Federal Government in identifying and countering threats to United States industry of foreign industrial espionage, including the manner in which such functions and roles are coordinated.
(B) The means by which the Federal Government communicates information on such threats, and on methods to protect against such threats, to United States industry in general and to United States companies known to be targets of foreign industrial espionage.
(C) The specific measures that are being or could be undertaken in order to improve the activities referred to in subparagraphs (A) and (B), including proposals for any modifications of law necessary to facilitate the undertaking of such activities.
(D) The threat to United States industry of foreign industrial espionage and any trends in that threat, including--
(i) the number and identity of the foreign governments conducting foreign industrial espionage;
(ii) the industrial sectors and types of information and technology targeted by such espionage; and
(iii) the methods used to conduct such espionage.
(2) The President shall submit the report required under this subsection not later than 6 months after the date of the enactment of this Act.
(b) Annual Update: Not later than 1 year after the date referred to in paragraph (2) of subsection (a), and on the expiration of each year thereafter, the President shall submit to Congress a report updating the information referred to in paragraph (1)(D) of that subsection.
(c) Form of Reports: To the maximum extent practicable, the reports referred to in subsections (a) and (b) shall be submitted in an unclassified form, but may be accompanied by a classified appendix.
(d) Report Under Defense Production Act: Section 721(k)(1)(B) of the Defense Production Act of 1950 (50 U.S.C. App. 2170(k)(1)(B)) is amended by inserting `or directly assisted' after `directed'.
(e) Definition: For the purposes of this section, `foreign industrial espionage' means industrial espionage conducted by a foreign government or by a foreign company with direct assistance of a foreign government against a private United States company and aimed at obtaining commercial secrets.
Mr. COHEN. Madam President, the amendment I am offering addresses the problem of industrial espionage committed by or with the assistance of foreign intelligence services.
I am not going to suggest that foreign industrial espionage is the greatest difficulty American industry faces in seeking to succeed in the global market. But it is a real problem that costs the U.S. economy billions of dollars annually and appears to be growing rapidly.
It is also a problem that has attracted far too little attention to date. As a result, efforts to deal with it are grossly inadequate. To far too great an extent, foreign industrial espionage has been an issue of concern to those who specialize in intelligence matters rather than those who are engaged in business.
Some larger companies are acting to protect themselves, but most American businesses are not--including many of the smaller firms which give birth to so much of our new technology.
The cases reported in the media abound. A South Korean computer company penetrates an American competitor with a mole who plants a bug in the United States company's fax machine. A Japanese company recruits an American executive with a drug habit to support, buying sensitive bidding information and other commercial secrets. Maintenance workers walk into a U.S. company's office overseas and reprogram the telephone switching equipment to enable outsiders to eavesdrop on the company's phone calls. An American scientist goes from labcoat to turncoat, selling foreign pharmaceutical companies trade secrets that had cost $750 million in research and development costs to acquire.
While much industrial espionage is solely the work of private firms, in many cases foreign governments assist or even direct economic spying activities.
French intelligence has long engaged in a large-scale industrial espionage program, penetrating foreign businesses, intercepting their telecommunications, and conducting a reported 10 to 15 breakins each day at Parisian hotels to copy documents business people have left in their rooms. The information acquired is passed on to French industry.
The Governments of Japan, Germany, Belgium, the Netherlands, and other allies, as well as such countries as China are also reported to spy on behalf of their countries' industry.
`All of America's major foreign competitors [have] the full weight of their governments' diplomatic and intelligence resources thrown behind their nationals' companies or consortia, especially ones in heavy offshore competition,' former senior CIA official George Carver said 3 years ago.
The situation is only getting worse as `foreign intelligence services have turned from politics to economics [with] the United States as their prime target,' CIA Director Robert Gates warned in 1992.
The U.S. Government has taken steps to make American industry better informed of the foreign industrial espionage threat and to assist it to defend itself.
Most of these efforts, however, are focused on the defense
industry, which has long been targeted by Soviet and other hostile intelligence services. While some progress in protecting nondefense industry has been made in the last few years, the general posture of the Federal Government remains a reactive one--at best telling nondefense industry that `we're ready to help if you come to use with a problem.' In my view, the Government should adopt an aggressive approach, going out to industry to explain what the problem is and how to guard against it.
To its credit, the FBI did produce in late 1992 a small pamphlet to raise business travelers' awareness of the industrial espionage threat overseas. The value of the pamphlet, however, was undermined by its almost exclusive focus on industrial espionage by communist or formerly communist countries, which few view as economic competitors and to which fewer still travel.
The General Accounting Office summed up the situation well in 1992 testimony: `The efforts of (intelligence and criminal justice) agencies do not appear to be sufficiently coordinated to adequately protect U.S. industry against economic espionage.'
The Justice Department has acknowledged weaknesses in its ability to deal with the threat, noting in a July 1992 letter:
The Attorney General has a limited ability to counter the unfair economic advantages being realized by foreign businesses and industries (through industrial espionage). Therefore, legislation providing additional `economic espionage' investigative jurisdiction to the Attorney General is warranted at this time.
I have considered various legislative options for addressing the problem of foreign industrial espionage. The amendment I am offering today, however, accepts a GAO recommendation that before seeking to legislate, Congress should generate a broader public dialogue and a comprehensive review of how the Federal Government is organized to fight this threat. This will help to ensure that legislative and other remedies adopted will be effective and not just the fodder for flacks.
My amendment would do three things:
First, it would require a one-time report reviewing:
First, the respective roles of the various agencies in identifying and countering foreign industrial espionage threats;
Second, the means by which the Federal Government communicates to U.S. industry information on these threats and on methods to protect against them;
Third, specific measures to improve the Government's internal functioning to counter foreign industrial espionage and its communication with industry on such espionage; and
Fourth, information on the nature of the threat, including the number and identity of foreign governments conducting industrial espionage, industrial sectors and information and technologies being targeted for espionage, and espionage methods used.
Second, my amendment would require an annual update, but only on the nature of the threat, so that the business community and Congress would be aware of trends in the threat.
Third, my amendment would clarify existing requirement for a quadrennial report on foreign industrial espionage targeting
critical technologies to ensure that report examines not only espionage directed by foreign governments but also that directly assisted by foreign governments.
I want to emphasize that nothing in my amendment advocates offensive industrial espionage activities against foreign companies, which is opposed by the U.S. intelligence community and most of the U.S. business community.
I would also emphasize that I generally oppose burdening the executive branch with reporting requirements. In fact, Senator Levin and I are engaged in an effort to repeal as many congressional imposed reporting requirements as possible.
But this does not mean that all reports should be opposed. Under the right circumstances, reporting requirements can stir the executive branch to action, provide the basis for much needed legislation, or help alter public behavior. I believe that the reports required by this amendment fall into this category.
The need for the amendment is highlighted by the wide chasm between the executive branch's rhetoric and action on the primacy of economic issues such as this.
When the Clinton administration assumed power, it created with much fanfare the National Economic Council. Deliberately modeled on the National Security Council, this new White House based operation was meant to give substance to the campaign rhetoric that in the post-cold-war world economic issues would assume the central focus occupied by security issue during the long twilight struggle.
One would have hoped that a complex issue such as this affecting the health of the Nation's economy and involving many Government agencies that traditionally do not deal with each other would have been precisely the type of problem to be tackled by the National Economic Council. Unfortunately, that does not appear to be the case.
I am hopeful that by compelling the review required by this amendment, we can energize the administration to adopt a more active role in addressing this threat. And by alerting the media and, through it, the business community to the nature of and trends in the threat, the private sector will adopt a more active role in protecting itself and in cooperating with the Federal Government to counter the threat more effectively.
In the words of the GAO, how these issues are decided may have a dramatic effect on the economic future of America.
Madam President, I refer those interested in this subject to my statement of March 10 (S2731), which includes the various documents and articles I have referenced or quoted today.
Mr. WARNER. Madam President, the chairman and I are quite willing to accept this amendment. If that may be the case, we shall determine from a parliamentary standpoint the voting later on.
May I say, Madam President, I thoroughly agree with the distinguished Senator from Maine that the Government should adopt an aggressive approach in explaining to industry what the problem is.
Mr. LEAHY. Mr. President, I have spoken to the distinguished chairman of the Select Committee on Intelligence about the provisions of this legislation that would amend the Foreign Intelligence Surveillance Act of 1978 to establish court order procedures to govern searchers for foreign intelligence purposes conducted in the United States.
I know that the ACLU and others oppose any legislation in this area in the hope that constitutional uncertainty surrounding whether the executive branch has some inherent authority to conduct warrantless searches for foreign intelligence purposes will act as a deterrent on the extent of such activity.
I would prefer that the Congress establish a fair statute protective of the privacy rights of Americans and sensitive to the delicate balance that is needed between the secrecy that necessarily surrounds our foreign intelligence activities and the openness that is essential to due process, good government and government accountability. I would prefer a statute with strict accountability, with punishment to deter and compensate for abuse, and with the maximum openness possible.
If we are going to have a court process to serve as a check on executive branch excursions into searches for foreign intelligences purposes in the United States and against Americans, we need to be sure that it is an effective check and that the deck is not stacked against individual rights of privacy. the procedures in the bill seem more intent on securing the privacy of the proceedings than the privacy of individuals. They are virtually all done ex parte and in camera without the person or persons whose privacy rights are being affected having any notice or opportunity to contest the government's actions. Even where the Government has commenced criminal proceedings, the Attorney General can opt to foreclose any adversary procedure to test the Government's submission, assertions or certifications.
Furthermore, the special court is required to approve the Government's requests unless it can sua sponte determine them to be clearly erroneous. This clearly erroneous standard for review has no place in these proceedings. This standard of review relegates the special court to determining little more than whether the application papers are in suitable form.
There may be other procedures worth considering to ensure that lower court and appellate review of these matters is vigorous and reflects the board sensitivity to first and fourth amendment rights that the Nation and other Federal appellate court
I think we should carefully consider the suggestions recently made by Kenneth C. Bass III, who was the initial Counsel for Intelligence Policy, at the Department of Justice during the Carter administration. These suggestions came after Senate hearings had concluded and after the Senate Select Committee had already reported this bill. He acknowledges that surveillance of U.S. persons for foreign intelligence purposes involves a delicate judgmental process and admits that nothing in our present procedures insures that difficult legal issues and close questions will be fully aired and presented for judicial scrutiny.
Mr. Bass suggests that in a small number of cases involving U.S. persons as targets of applications for searches for foreign surveillance purposes it would be possible for the court to appoint an independent counsel to examine an application devoid of the identity of the target and intelligence sources and to appear before the court to present arguments against the issuance of a surveillance order. This guardian at litem approach holds promise and should be fully explored before final passage of any bill.
In addition, I am also troubled that activities protected by the first amendment of the Constitution of the United States are allowed to form any basis to target a U.S. person for a foreign intelligence search. Historically, it has been in this area where the abuses have come. The temptation to target political dissidents is often too great to resist. We can do better.
Finally, I think that the provisions governing congressional oversight can and should be strengthened and improved. This is an area where we are being asked to rely upon the procedures adopted by the Congress to protect the rights of Americans to feel safe and secure from surveillance by their own government. As the peoples' representatives we must demand greater accountability and provide more extensive oversight in this fundamental area. Thus, for a start I would recommend that oversight reporting be required of both the Foreign Intelligence Surveillance Court and the Attorney General independently and that such reports be made to the Judiciary Committees of the House and Senate, as well as to our Intelligence Committees. Moreover, such reports should include more than the total numbers of applications and orders but also critical information about those applications, including the total number of Americans searched, and an accounting of agency requests that did not result in applications.
I have other suggestions, which I am sharing with Chairman DeConcini and Vice Chairman Warner. I have been assured by the chairman that he intends to consult with me and others who are concerned about these provisions in preparation for a House-Senate conference and before agreeing upon a conference report or seeking final passage. I have great respect, admiration and affection for the Senator from Arizona.
The chairman of the Select Committee on Intelligence has requested that we expedite Senate passage of the committee's bill at this time so that important reforms to the National Security Act to improve our counterintelligence and security posture have a chance to be enacted this year. In the wake of the Ames case, the bombing of the World Trade Center, and the apparent breakdowns in our foreign intelligence efforts, I share with him a desire to expedite necessary corrective action. In light of his personal assurances and the special circumstances that preclude extended debate, I will honor his request and not insist upon extensive debate. I rise to make clear my concerns about the procedures to govern court orders for searches for foreign intelligence purposes within the United States so that we can proceed in good faith to attempt to fashion an improved bill that can command the support of the Senate and the American people.
Mr. DeCONCINI. Madam President, we have reviewed this amendment. I think the Senator from Virginia has explained it in some detail, and we are prepared to accept the amendment on the part of the majority.
Mr. WARNER. Madam President, I urge its adoption.
The PRESIDING OFFICER (Mrs. Murray). Is all time yielded back?
Mr. DeCONCINI. I yield back my time on the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 2554) was agreed to.
Mr. DeCONCINI. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DeCONCINI. Madam President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. Without objection, the amendment will be in order at this time.
The clerk will report the amendment.
The bill clerk read as follows:
The Senator from Arizona [Mr. DeCONCINI] proposes an amendment numbered 2555 to amendment No. 2553.
Mr. DeCONCINI. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the amendment, add the following:
Not less than $10 million from the NSA base budget shall be transferred to U.S. Army signals intelligence activities directed at counternarcotics targets. A detailed operations plan with special emphasis on the United States/Mexico border and including the participation of the National Security Agency, the Drug Enforcement Administration, the Federal Bureau of Investigation, and the U.S. Customs Service, shall be provided to the Senate Select Committee on Intelligence and the House permanent Select Committee on Intelligence not later than November 15, 1994. This plan shall include a detailed description of the planned targets and the type of intelligence collection, dissemination, analysis and tasking that will be included in these operations.
Mr. DeCONCINI. Madam President, this amendment provides for transfer of $10 million from the base for better utilization of technical assets of the U.S. intelligence community, specifically in expertise of national security agencies on the war on drugs.
I offer this as a second-degree amendment. I think it has been cleared on the other side of the aisle.
Mr. WARNER. Madam President, it has been cleared, and I urge adoption of the amendment.
The PRESIDENT OFFICER. Is there further debate? Is all time yielded back?
Mr. DeCONCINI. I yield back the time, Madam President.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 2555) was agreed to.
Mr. LEAHY. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DeCONCINI. Madam President, I suggest the absence of a quorum.
Mr. DOLE. Will the Senator withhold.
The PRESIDING OFFICER. Does the Senator from Arizona withhold his request?
Mr. DeCONCINI. I withdraw the request.
Mr. DOLE. Madam President, was leaders' time reserved?
The PRESIDING OFFICER. Yes, it was.
Mr. DOLE. I ask that I be permitted to use part of that leader time, with my remarks not to interfere with the debate.
The PRESIDING OFFICER. The Senator has that right.