congressional_record: CREC-2004-12-20-pt1-PgE2209
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| CREC-2004-12-20-pt1-PgE2209 | 2004-12-20 | 108 | 2 | CONFERENCE REPORT ON S. 2845, INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 | HOUSE | EXTENSIONS | ALLOTHER | E2209 | E2210 | [{"name": "Peter Hoekstra", "role": "speaking"}] | [{"congress": "108", "type": "HR", "number": "10"}, {"congress": "108", "type": "S", "number": "2845"}, {"congress": "108", "type": "S", "number": "2845"}] | 150 Cong. Rec. E2209 | Congressional Record, Volume 150 Issue 140 (Monday, December 20, 2004) [Congressional Record Volume 150, Number 140 (Monday, December 20, 2004)] [Extensions of Remarks] [Pages E2209-E2210] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] CONFERENCE REPORT ON S. 2845, INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 ______ speech of HON. PETER HOEKSTRA of michigan in the house of representatives Tuesday, December 7, 2004 Mr. HOEKSTRA. Mr. Speaker, as chairman of the conference on the bill I would also like to briefly discuss the interpretation of this legislation. The conference report embodies the substantial agreement between the House bill, H.R. 10, and the Senate bill, S. 2845, on the core reforms to be carried out by this legislation. It is also important to note, however, that the conference faced many challenges in reconciling often fundamentally different philosophies and visions underlying those reforms and the specific provisions in each bill. Accordingly, the conferees agreed to submit only a very limited Joint Explanatory Statement on the conference report, relying on the text of the legislation to represent our agreements. Only that text, which is controlling, and the Joint Explanatory Statement were agreed to by both houses and reflect the intent of the conferees. I should also note that Chairman Hyde intends to submit a statement for the record reflecting bipartisan and bicameral understandings with respect to certain foreign affairs provisions of the bill. Other statements by Members of Congress outside the scope of the Joint Explanatory Statement, media reports, or the reports or work product of any of the outside panels or commissions whose work contributed to this legislation reflect their own views and should not be construed as determinative guidance with respect to legislative intent. While that framework ultimately controls interpretation of the bill, I would like to note my understanding as chairman of the conference of several matters within this legislation. Authorities of the Director of National Intelligence The nature of the authorities to be granted to the Director of National Intelligence, DNI, and the relationship of the Director to other Federal officials were delicate and precisely negotiated issues, with resulting agreements reflected in the legislative language of the conference report. Only that legislative language controls the authorities of the DNI. This principle bears special emphasis in a number of areas. With respect to budget formulation, the text of the agreement carefully and explicitly specifies the authorities of the DNI and the relationships between the DNI, the heads of individual agencies and organizations within the National Intelligence Program, and the heads of executive departments containing those agencies and organizations. Those roles and authorities should be construed solely by reference to the provisions of the conference report and existing law--no more, and no less. For example, the text explicitly provides that both the heads of executive departments containing agencies or organizations within the intelligence community and the heads of those discrete agencies may each provide annual budget proposals to the DNI, based on the DNI's guidance, for the DNI to use in determining and presenting an intelligence budget to the President. Beyond this direction, the legislation does not specify how the budget proposals are to be developed or provided, and it is properly for the executive branch to determine how to execute the statute consistent with its text. Similarly, the legislation provides, in amended section 102A(e)(2)(A) of the National Security Act, that personnel transfers are to be made in accordance with procedures developed by the DNI and the heads of affected departments and agencies. It does not specify what role is to be played in the transfers by department and agency heads pursuant to such procedures. Presumably, that matter will be determined by the executive branch within the agreement on procedures developed under the legislative text. Consistent with basic constitutional principles, the legislation provides that the DNI's authority is ``[s]ubject to the authority, direction, and control of the President.'' Accordingly, the text does not specify who is to perform the President's daily intelligence briefing or under what specific operational circumstances the President will interact with the Director of the CIA, which should be matters for the President to decide himself. The legislation also contains a detailed provision dealing with the apportionment of funds. That provision textually speaks only to the apportionment of funds, not to apportionment plans or any other related matter. Similarly, the conference report does not specifically authorize the creation of an entity within the Office of the DNI to perform common services or of a Chief Financial Officer for the DNI. Nor does it provide that an open source intelligence center, if created, should be a new element of the intelligence community. Nor is the conforming amendment to section 105(a) of the National Security Act contained in section 1072(a)(2) of the legislation intended to substantively amend the authority of the Secretary of Defense. That provision merely clarifies that section 105(a) of the National Security Act should be construed in conjunction with the specified statutory authorities of the DNI. Had the conference intended to address any of these matters in this legislation, appropriately specific provisions would have been included to do so. national counterterrorism center and national intelligence centers The authorities of the National Counterterrorism Center were issues of great and delicate debate during the conference. This is particularly true with respect to the balance between the authority of the NCTC to conduct ``strategic operational planning'' and the authority of individual departments and agencies to plan and direct the conduct of the resulting operations. There was full agreement that the NCTC properly should assign ``roles and responsibilities'' to agencies participating in Counterterrorism operations. However, the text of the legislation specifies that the assignment of ``roles and responsibilities'' does not extend to directing the execution of any resulting operations. The legislation does not, for example, authorize the NCTC to determine which personnel or specific capabilities should be utilized by agencies in mission execution. Similarly, careful discussions took place in the conference with respect to the detail of personnel to the NCTC, with the outcome memorialized in the legislative text. There is no specific direction to concentrate personnel holding scarce and desirable skills in the NCTC, nor is such concentration prohibited. In exercising authorities to transfer or detail personnel, it will be important for the DNI to weigh the needs of an effective NCTC with the needs of other agencies and the intelligence community as a whole. The conference also reached compromise on the scope and authorities of any future National Intelligence Centers that might be created by the Director of National Intelligence. The conference report authorizes the DNI to establish, if appropriate and necessary to complete the mission, national intelligence centers that are administratively distinct from the other agencies of the intelligence community. However, it does not require that all National Intelligence Centers be created as separate and administratively distinct entities. As with the NCTC, it will be important for the DNI [[Page E2210]] to weigh the needs of any additional National Intelligence Centers against the needs of the agencies within the intelligence community, with due consideration for the expert personnel that make the intelligence community effective. information flow and information sharing The legislation specifies that the information sharing system created in section 1016 is to facilitate the sharing of terrorism information, as specifically defined in section 1016(a)(4). The conference specifically chose to remove references to any specific system, network, or proposal as a model. As provided in section 1016(b)(1)(a), the system is to be established consistent with ``applicable legal standards'' relating to privacy and civil liberties. Further, the conference did not establish specific qualifications for the program manager to be designated under the bill. While experience with managing an ``enterprise architecture'' is desirable, that expertise is a narrow category of necessary qualifications and it is equally important that the manager have program management and systems development expertise. I should also note that the legislation refers to the ``Information Sharing Council.'' This is intended to refer to the ``Information Systems Council'' established by Executive order. privacy and civil liberties oversight board The Privacy and Civil Liberties Board also was a carefully negotiated provision in conference. Once again, only the text of the legislation reflects our final agreement. The conference dropped a proposed provision that would have limited the board to providing advice only when requested by the head of an agency, choosing to remain silent on the specifics. Such silence should not be construed, however, as a requirement for executive branch officials to routinely or affirmatively consult with the Board. Such a requirement does not appear in the legislation, and again this is a matter for the Executive to carry out consistent with the legislative text. In addition, there was extensive discussion of the exemption that is included in section 1061(d)(4) of the bill with respect to the authority of the DNI to withhold information from the Board for national security reasons. The legislation speaks for itself, but I would like to emphasize that the possession of a security clearance does not automatically provide a ``need to know'' classified information, especially where it is uniquely sensitive. This provision should not be used to routinely withhold information, but is instead intended to come into play where preventing potential harm to national security from disclosure precludes the ``need to know'' served by the interests of the Board. It is also important to note that the conference did not have an opportunity to consider the relationship of section 1062, a sense of Congress provision dealing with designation of agency privacy officers, to similar provisions contained in the Omnibus Appropriations Bill dealing with Chief Privacy Officers. public interest declassification board Section 1102 of the conference report, dealing with the Public Interest Declassification Board, provides that the board may conduct review and make recommendations to the President with respect to requests from congressional committees of jurisdiction to declassify certain records or reconsider a declination to declassify certain records. It is important to emphasize that the text of section 1102(b) and, by reference, section 1102(e) refer only to requests from committees of jurisdiction and not individual Members of Congress, and that no authority for individual members to make such requests should be inferred. drivers license and personal identification card provisions Finally, I note two provisions that were the subject of negotiation in section 7212 of the conference report, dealing with standards for drivers' licenses. First, a detailed specification of which ``interested parties'' should participate in the negotiated rulemaking provided for in this section was specifically omitted from the text. It is therefore erroneous to infer or suggest that a requirement for mandatory participation by any particular ``interested party'' or group in the rulemaking is intended in the bill. Second, a provision was removed from section 7212(b)(3)(E) that would have required the regulations developed in the rulemaking to include requirements to protect unspecified ``civil and due process'' rights of individuals applying for and holding drivers licenses and personal identification cards. This legislation is not intended to create or infer the creation of any civil or due process right relating to drivers' licenses or identification cards, nor is any such provision included in the text of the legislation. My statement is not exhaustive and is without prejudice to interpretation of other items in the conference report, which I again emphasize in closing should be made solely by reference to the text of the conference report and the Joint Explanatory Statement. ____________________ |