Congressional Record: November 6, 2003 (House)


 
CONFERENCE REPORT ON H.R. 1588, NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004

                  Conference Report (H. Rept. 108-354)
				  
				       [Excerpts]
				  
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Sec. 922. Protection of operational files of the National Security 
              Agency.
			  
[...]

Sec. 1041. Codification and revision of defense counterintelligence 
              polygraph program authority.

[...]

Sec. 1442. Public disclosure of noncompetitive contracting for the 
              reconstruction of infrastructure in Iraq.

[...]



	 
     SEC. 922. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL 
                   SECURITY AGENCY.

       (a) Protection of Operational Files of NSA.--Title VII of 
     the National Security Act of 1947 (50 U.S.C. 401 et seq.) is 
     amended by adding at the end the following new section:


          "operational files of the national security agency

       "Sec. 704. (a) Exemption of Certain Operational Files From 
     Search, Review, Publication, or Disclosure.--The Director of 
     the National Security Agency, in coordination with the 
     Director of Central Intelligence, may exempt operational 
     files of the National Security Agency from the provisions of 
     section 552 of title 5, United States Code, which require 
     publication, disclosure, search, or review in connection 
     therewith.
       "(b) Operational Files Defined.--(1) In this section, the 
     term `operational files' means--
       "(A) files of the Signals Intelligence Directorate of the 
     National Security Agency (and any successor organization of 
     that directorate) that document the means by which foreign 
     intelligence or counterintelligence is collected through 
     technical systems; and
       "(B) files of the Research Associate Directorate of the 
     National Security Agency (and any successor organization of 
     that directorate) that document the means by which foreign 
     intelligence or counterintelligence is collected through 
     scientific and technical systems.
       "(2) Files that are the sole repository of disseminated 
     intelligence, and files that have been accessioned into the 
     National Security Agency Archives (or any successor 
     organization) are not operational files.
       "(c) Search and Review for Information.--Notwithstanding 
     subsection (a), exempted operational files shall continue to 
     be subject to search and review for information concerning 
     any of the following:
       "(1) United States citizens or aliens lawfully admitted 
     for permanent residence who have requested information on 
     themselves pursuant to the provisions of section 552 or 552a 
     of title 5, United States Code.
       "(2) Any special activity the existence of which is not 
     exempt from disclosure under the provisions of section 552 of 
     title 5, United States Code.
       "(3) The specific subject matter of an investigation by 
     any of the following for any impropriety, or violation of 
     law, Executive order, or Presidential directive, in the 
     conduct of an intelligence activity:
       "(A) The Committee on Armed Services and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives.
       "(B) The Committee on Armed Services and the Select 
     Committee on Intelligence of the Senate.
       "(C) The Intelligence Oversight Board.
       "(D) The Department of Justice.
       "(E) The Office of General Counsel of the National 
     Security Agency.
       "(F) The Office of the Inspector General of the Department 
     of Defense.
       "(G) The Office of the Director of the National Security 
     Agency.
       "(d) Information Derived or Disseminated from Exempted 
     Operational Files.--(1) Files that are not exempted under 
     subsection (a) that contain information derived or 
     disseminated from exempted operational files shall be subject 
     to search and review.
       "(2) The inclusion of information from exempted 
     operational files in files that are not exempted under 
     subsection (a) shall not affect the exemption under 
     subsection (a) of the originating operational files from 
     search, review, publication, or disclosure.
       "(3) The declassification of some of the information 
     contained in exempted operational files shall not affect the 
     status of the operational file as being exempt from search, 
     review, publication, or disclosure.
       "(4) Records from exempted operational files that have 
     been disseminated to and referenced in files that are not 
     exempted under subsection (a) and that have been returned to 
     exempted operational files for sole retention shall be 
     subject to search and review.
       "(e) Supercedure of Other Laws.--The provisions of 
     subsection (a) may not be superseded except by a provision of 
     law that is enacted after the date of the enactment of this 
     section and that specifically cites and repeals or modifies 
     such provisions.
       "(f) Allegation; Improper Withholding of Records; Judicial 
     Review.--(1) Except as provided in paragraph (2), whenever 
     any person who has requested agency records under section 552 
     of title 5, United States Code, alleges that the National 
     Security Agency has withheld records improperly because of 
     failure to comply with any provision of this section, 
     judicial review shall be available under the terms set forth 
     in section 552(a)(4)(B) of title 5, United States Code.
       "(2) Judicial review shall not be available in the manner 
     provided for under paragraph (1) as follows:
       "(A) In any case in which information specifically 
     authorized under criteria established by an Executive order 
     to be kept secret in the interests of national defense or 
     foreign relations is filed with, or produced for, the court 
     by the National Security Agency, such information shall be 
     examined ex parte, in camera by the court.
       "(B) The court shall determine, to the fullest extent 
     practicable, the issues of fact based on sworn written 
     submissions of the parties.
       "(C) When a complainant alleges that requested records are 
     improperly withheld because of improper placement solely in 
     exempted operational files, the complainant shall support 
     such allegation with a sworn written submission based upon 
     personal knowledge or otherwise admissible evidence.
       "(D)(i) When a complainant alleges that requested records 
     were improperly withheld because of improper exemption of 
     operational files, the National Security Agency shall meet 
     its burden under section 552(a)(4)(B) of title 5, United 
     States Code, by demonstrating to the court by sworn written 
     submission that exempted operational files likely to contain 
     responsible records currently perform the functions set forth 
     in subsection (b).
       "(ii) The court may not order the National Security Agency 
     to review the content of any exempted operational file or 
     files in order to make the demonstration required under 
     clause (i), unless the complainant disputes the National 
     Security Agency's showing with a sworn written submission 
     based on personal knowledge or otherwise admissible evidence.
       "(E) In proceedings under subparagraphs (C) and (D), the 
     parties may not obtain discovery pursuant to rules 26 through 
     36 of the Federal Rules of Civil Procedure, except that 
     requests for admissions may be made pursuant to rules 26 and 
     36.
       "(F) If the court finds under this subsection that the 
     National Security Agency has improperly withheld requested 
     records because of failure to comply with any provision of 
     this subsection, the court shall order the Agency to search 
     and review the appropriate exempted operational file or files 
     for the requested records and make such records, or portions 
     thereof, available in accordance with the provisions of 
     section 552 of title 5, United States Code, and such order 
     shall be the exclusive remedy for failure to comply with 
     this section (other than subsection (g)).
       "(G) If at any time following the filing of a complaint 
     pursuant to this paragraph the National Security Agency 
     agrees to search the appropriate exempted operational file or 
     files for the requested records, the court shall dismiss the 
     claim based upon such complaint.
       "(H) Any information filed with, or produced for the court 
     pursuant to subparagraphs (A) and (D) shall be coordinated 
     with the Director of Central Intelligence before submission 
     to the court.
       "(g) Decennial Review of Exempted Operational Files.--(1) 
     Not less than once every 10 years, the Director of the 
     National Security Agency and the Director of Central 
     Intelligence shall review the exemptions in force under 
     subsection (a) to determine whether such exemptions may be 
     removed from a category of exempted files or any portion 
     thereof. The Director of Central Intelligence must approve 
     any determination to remove such exemptions.
       "(2) The review required by paragraph (1) shall include 
     consideration of the historical value or other public 
     interest in the subject matter of a particular category of 
     files or portions thereof and the potential for declassifying 
     a significant part of the information contained therein.
       "(3) A complainant that alleges that the National Security 
     Agency has improperly withheld records because of failure to 
     comply with this subsection may seek judicial review in the 
     district court of the United States of the district in which 
     any of the parties reside, or in the District of Columbia. In 
     such a proceeding, the court's review shall be limited to 
     determining the following:
       "(A) Whether the National Security Agency has conducted 
     the review required by paragraph (1) before the expiration of 
     the 10-year period beginning on the date of the enactment of 
     this section or before the expiration of the 10-year period 
     beginning on the date of the most recent review.
       "(B) Whether the National Security Agency, in fact, 
     considered the criteria set forth in paragraph (2) in 
     conducting the required review.".
       (b) Consolidation of Current Provisions on Protection of 
     Operational Files of CIA.--Title VII of such Act is further 
     amended--
       (1) in section 701(b) (50 U.S.C. 431(b)), by striking "For 
     purposes of this title" and inserting "In this section,"; 
     and
       (2) in section 702 (50 U.S.C. 432)--
       (A) by striking the section heading;
       (B) by redesignating the text of that section as subsection 
     (g) of section 701 and redesignating subsections (a), (b), 
     and (c) thereof as paragraphs (1), (2), and (3), 
     respectively;
       (C) by inserting "Decennial Review of Exempted Operational 
     Files.--" after the subsection designation (as designated by 
     subparagraph (B));
       (D) in paragraph (1) (as redesignated by subparagraph (B)), 
     by striking "of section 701 of this Act";
       (E) in paragraph (2) (as redesignated by subparagraph (B)), 
     by striking "of subsection (a) of this section" and 
     inserting "paragraph (1)"; and
       (F) in paragraph (3) (as redesignated by subparagraph 
     (B))--
       (i) by striking "with this section" in the first sentence 
     and inserting "with this subsection"; and
       (ii) by striking "to determining" in the second sentence 
     and all that follows and inserting "to determining the 
     following:
       "(A) Whether the Central Intelligence Agency has conducted 
     the review required by paragraph (1) before October 15, 1994, 
     or before the expiration of the 10-year period beginning on 
     the date of the most recent review.
       "(B) Whether the Central Intelligence Agency, in fact, 
     considered the criteria set forth in paragraph (2) in 
     conducting the required review.".
       (c) Consolidation of Current Provisions on Protection of 
     Operational Files of Certain Other Intelligence Agencies.--
     The National Security Act of 1947 (50 U.S.C. 401 et seq.) is 
     further amended--
       (1) by transferring section 105C (50 U.S.C. 403-5c), as 
     amended by section 921(e)(4), and section 105D (50 U.S.C. 
     403-5e) to title VII of that Act and inserting them after 
     section 701, as amended by subsection (b); and
       (2) by redesignating those sections, as so transferred, as 
     sections 702 and 703, respectively.
       (d) Clerical Amendments.--The National Security Act of 1947 
     is amended as follows:
       (1)(A) The heading for title VII is amended to read as 
     follows:

            "TITLE VII--PROTECTION OF OPERATIONAL FILES".

       (B) The heading for section 701 is amended to read as 
     follows:


       "operational files of the central intelligence agency".

       (C) The heading for section 702, as transferred and 
     redesignated by subsection (c), is amended to read as 
     follows:


 "operational files of the national geospatial-intelligence agency".

       (D) The heading for section 703, as transferred and 
     redesignated by subsection (c), is amended by striking the 
     first two words.
       (2) The table of contents in the first section of the 
     National Security Act of 1947 is amended--
       (A) by striking the items relating to sections 105C and 
     105D; and
       (B) by striking the items relating to title VII and 
     sections 701 and 702 and inserting the following new items:

              "Title VII--Protection of Operational Files

"Sec. 701. Operational files of the Central Intelligence Agency.
"Sec. 702. Operational files of the National Geospatial-Intelligence 
              Agency.
"Sec. 703. Operational files of the National Reconnaissance Office.
"Sec. 704. Operational files of the National Security Agency.".

     Protection of operational files of the National Security 
         Agency (sec. 922)
       The House bill contained a provision (sec. 1050) that would 
     exempt certain operational files at the National Security 
     Agency (NSA) from the search, review, and disclosure 
     provisions of the Freedom of Information Act, contained in 
     section 552 of title 5, United States Code. This authority 
     parallels the authority currently available to the Central 
     Intelligence Agency, the National Imagery and Mapping 
     Agency, and the National Reconnaissance Office.
       The Senate amendment contained a similar provision (sec. 
     1035) that would also limit the specific offices at the NSA 
     that can qualify for an exemption.
       The House recedes with a clarifying amendment.


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     SEC. 1041. CODIFICATION AND REVISION OF DEFENSE 
                   COUNTERINTELLIGENCE POLYGRAPH PROGRAM 
                   AUTHORITY.

       (a) Codification.--(1) Chapter 80 of title 10, United 
     States Code, is amended by inserting after section 1564 the 
     following new section:

     "Sec. 1564a. Counterintelligence polygraph program

       "(a) Authority for Program.--The Secretary of Defense may 
     carry out a program for the administration of 
     counterintelligence polygraph examinations to persons 
     described in subsection (b). The program shall be based on 
     Department of Defense Directive 5210.48, dated December 24, 
     1984.
       "(b) Persons Covered.--Except as provided in subsection 
     (c), the following persons whose duties involve access to 
     information that has been classified at the level of top 
     secret or designated as being within a special access program 
     under section 4.4(a) of Executive Order 12958 (or a successor 
     Executive order) are subject to this section:
       "(1) Military and civilian personnel of the Department of 
     Defense.
       "(2) Personnel of defense contractors.
       "(3) A person assigned or detailed to the Department of 
     Defense.
       "(4) An applicant for a position in the Department of 
     Defense.
       "(c) Exceptions From Coverage for Certain Intelligence 
     Agencies and Functions.--This section does not apply to the 
     following persons:
       "(1) A person assigned or detailed to the Central 
     Intelligence Agency or to an expert or consultant under a 
     contract with the Central Intelligence Agency.
       "(2) A person who is--
       "(A) employed by or assigned or detailed to the National 
     Security Agency;
       "(B) an expert or consultant under contract to the 
     National Security Agency;
       "(C) an employee of a contractor of the National Security 
     Agency; or
       "(D) a person applying for a position in the National 
     Security Agency.
       "(3) A person assigned to a space where sensitive 
     cryptographic information is produced, processed, or stored.
       "(4) A person employed by, or assigned or detailed to, an 
     office within the Department of Defense for the collection of 
     specialized national foreign intelligence through 
     reconnaissance programs or a contractor of such an office.
       "(d) Oversight.--(1) The Secretary shall establish a 
     process to monitor responsible and effective application of 
     polygraph examinations within the Department of Defense.
       "(2) The Secretary shall make information on the use of 
     polygraphs within the Department of Defense available to the 
     congressional defense committees.
       "(e) Polygraph Research Program.--The Secretary shall 
     carry out a continuing research program to support the 
     polygraph examination activities of the Department of 
     Defense. The program shall include--
       "(1) an on-going evaluation of the validity of polygraph 
     techniques used by the Department;
       "(2) research on polygraph countermeasures and anti-
     countermeasures; and
       "(3) developmental research on polygraph techniques, 
     instrumentation, and analytic methods.".
       (2) The table of sections at the beginning of such chapter 
     is amended by inserting after the item relating to section 
     1564 the following new item:

"1564a. Counterintelligence polygraph program.".
       (b) Conforming Repeal.--Section 1121 of the National 
     Defense Authorization Act for Fiscal Years 1988 and 1989 (10 
     U.S.C. 113 note), is repealed.
	 
	 
  Codification and revision of defense counterintelligence 
     polygraph program authority (sec. 1041)
       The House bill contained a provision (sec. 1041) that would 
     remove existing limits on the number of polygraph 
     examinations that the Department of Defense (DOD) may 
     administer in any fiscal year. The provision also expands the 
     categories of individuals who may be required to undergo 
     polygraph examinations, to include persons applying for 
     positions at DOD and persons from other agencies assigned or 
     detailed to DOD who will require access to top secret or 
     special access information. The provision would further 
     require the Secretary of Defense to institute a process to 
     monitor responsible and effective application of polygraphs 
     within DOD, and to make information on the use of polygraphs 
     available to the congressional defense committees on request, 
     in lieu of a recurring reporting requirement.
       The Senate amendment contained no similar provision.
       The Senate recedes with a technical amendment.

[...]

     SEC. 1442. PUBLIC DISCLOSURE OF NONCOMPETITIVE CONTRACTING 
                   FOR THE RECONSTRUCTION OF INFRASTRUCTURE IN 
                   IRAQ.

       (a) Disclosure Required.--
       (1) Publication and public availability.--The head of an 
     executive agency of the United States that enters into a 
     contract for the repair, maintenance, or construction of 
     infrastructure in Iraq without full and open competition 
     shall publish in the Federal Register or Commerce Business 
     Daily and otherwise make available to the public, not later 
     than 30 days after the date on which the contract is entered 
     into, the following information:
       (A) The amount of the contract.
       (B) A brief description of the scope of the contract.
       (C) A discussion of how the executive agency identified, 
     and solicited offers from, potential contractors to perform 
     the contract, together with a list of the potential 
     contractors that were issued solicitations for the offers.
       (D) The justification and approval documents on which was 
     based the determination to use procedures other than 
     procedures that provide for full and open competition.
       (2) Inapplicability to contracts after fiscal year 2005.--
     Paragraph (1) does not apply to a contract entered into after 
     September 30, 2005.
       (b) Classified Information.--
       (1) Authority to withhold.--The head of an executive agency 
     may--
       (A) withhold from publication and disclosure under 
     subsection (a) any document that is classified for restricted 
     access in accordance with an Executive order in the interest 
     of national defense or foreign policy; and
       (B) redact any part so classified that is in a document not 
     so classified before publication and disclosure of the 
     document under subsection (a).
       (2) Availability to congress.--In any case in which the 
     head of an executive agency withholds information under 
     paragraph (1), the head of such executive agency shall make 
     available an unredacted version of the document containing 
     that information to the chairman and ranking member of each 
     of the following committees of Congress:
       (A) The Committee on Governmental Affairs of the Senate and 
     the Committee on Government Reform of the House of 
     Representatives.
       (B) The Committees on Appropriations of the Senate and 
     House of Representatives.
       (C) Each committee that the head of the executive agency 
     determines has legislative jurisdiction for the operations of 
     such department or agency to which the information relates.
       (c) Fiscal Year 2003 Contracts.--This section shall apply 
     to contracts entered into on or after October 1, 2002, except 
     that, in the case of a contract entered into before the date 
     of the enactment of this Act, subsection (a) shall be applied 
     as if the contract had been entered into on the date of the 
     enactment of this Act.
       (d) Relationship to Other Disclosure Laws.--Nothing in this 
     section shall be construed as affecting obligations to 
     disclose United States Government information under any other 
     provision of law.
       (e) Definitions.--In this section, the terms "executive 
     agency" and "full and open competition" have the meanings 
     given such terms in section 4 of the Office of Federal 
     Procurement Policy Act (41 U.S.C. 403).
	 
     Public disclosure of noncompetitive contracting for the 
         reconstruction of infrastructure in Iraq (sec. 1442)
       The House bill contained a provision (sec. 1455) that would 
     require agencies to report on the justification for awarding 
     a contract for the reconstruction of infrastructure in Iraq 
     without full and open competition.
       The Senate amendment contained a similar provision (sec. 
     1209).
       The Senate recedes with an amendment that would limit the 
     reporting requirement to contracts entered into on or before 
     September 30, 2005.

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