Intelligence Oversight

Key Provisions in the Intelligence Authorization Act (FY'17)

By Robert Chesney
Friday, December 2, 2016, 11:01 AM

On November 30th, the House passed H.R. 6393, the Intelligence Authorization Act for FY'17. While it remains to be seen what if anything ultimately emerges at the end of the process, I'd like to highlight some items in the current bill that I found particularly interesting:

- two involve attempts to give SSCI and HPSCI greater awareness of presidential policy directives and MOUs involving the IC;

- one undoes 2014 move that gave the Pentagon's Chief Information Officer oversight of NSA's Information Assurance Directorate (presumably in light of the NSA21 reorganization); and

- two focus on countering Russian intelligence activities in ways that sound like plot elements from the show The Americans (which is not to say they are bad ideas, though they might not sit well with the incoming Trump administration).

1. Ensuring SSCI and HPSCI know of policy guidance and MOUs constraining the IC

Section 309. Congressional oversight of policy directives and guidance

(a) Covered policy document defined

In this section, the term covered policy document means any classified or unclassified Presidential Policy Directive, Presidential Policy Guidance, or other similar policy document issued by the President, including any annex to such a Directive, Guidance, or other document, that assigns takes, roles, or responsibilities the intelligence community.

(b) Submissions to Congress

The Director of National Intelligence shall submit to the congressional intelligence committees the following:

(1) Not later than 15 days after the date that a covered policy document is issued, a notice of the issuance and a summary of the subject matter addressed by such covered policy document.

(2) Not later than 15 days after the date that the Director issues any guidance or direction on implementation of a covered policy document or implements a covered policy document, a copy of such guidance or direction or a description of such implementation.

(3) Not later than 15 days after the date of the enactment of this Act, for any covered policy document issued prior to such date that is being implemented by any element of the intelligence community or that is in effect on such date—

(A) a notice that includes the date such covered policy document was issued and a summary of the subject matter addressed by such covered policy document; and

(B) if the Director has issued any guidance or direction on implementation of such covered policy document or is implementing such covered policy document, a copy of the guidance or direction or a description of such implementation.

Section 310. Notification of memoranda of understanding

(a) In general

The head of each element of the intelligence community shall submit to the congressional intelligence committees a copy of each memorandum of understanding or other agreement regarding significant operational activities or policy between or among such element and any other entity or entities of the United States Government—

(1) for such a memorandum or agreement that is in effect on the date of the enactment of this Act, not later than 60 days after such date; and

(2) for such a memorandum or agreement entered into after such date, in a timely manner and not more than 60 days after the date such memorandum or other agreement is entered into.

(b) Administrative memorandum or agreement

Nothing in this section may be construed to require an element of the intelligence community to submit to the congressional intelligence committees any memorandum or agreement that is solely administrative in nature, including a memorandum or agreement regarding joint duty or other routine personnel assignments.

2. Eliminating the Pentagon CIO's formal authority over NSA's information assurance function

My understanding is that in 2014 there was a somewhat-contentious decision to empower DOD's Chief Information Officer to have "authority, direction, and control" over the NSA Information Assurance Directorate (displacing a prior relationship in which IAD was overseen to some extent via the office of the Under Secretary for Defense (Intelligence)). Since then, at any rate, NSA has committed to a major reorganization that includes integration of IAD with the Signals Intelligence Directorate, forming a single Directorate of Operations. Whether for that reason or because the CIO experiment was not working out, Section 421 of the authorization act removes the CIO's authority (which had been codified at 10 USC 142(b)(D)):

421. Clarification of authority, direction, and control over the information assurance directorate of the National Security Agency

Section 142(b)(1) of title 10, United States Code, is amended—

(1) in subparagraph (B), by striking the semicolon and inserting “; and;”

(2) in subparagraph (C), by striking “; and” and inserting a period; and

(3) by striking subparagraph (D).

3. Resisting Russian intelligence activities

There are several provisions in the bill aimed at Russian intelligence activities. Given the looming arrival of the Trump administration, these may not sit well with the new team, and the first one mentioned below almost certainly will come to nothing. Which may explain why the second one below (which restricts the travel of Russian diplomats) contains a waiver provision where control over the waiver is lodged with the FBI Director rather than the President.

501.Committee to counter active measures by the Russian Federation to exert covert influence over peoples and governments

(b) Establishment

There is established within the executive branch an interagency committee to counter active measures by the Russian Federation to exert covert influence.

… (e) Duties

The duties of the committee established by subsection (b) shall be as follows:

(1) To counter active measures by Russia to exert covert influence, including by exposing falsehoods, agents of influence, corruption, human rights abuses, terrorism, and assassinations carried out by the security services or political elites of the Russian Federation or their proxies.

(2) Such other duties as the President may designate for purposes of this section.

502. Limitation on travel of accredited diplomats and consulars of the Russian Federation in the United States from their diplomatic post

(b) Quarterly limitation on travel distance

Accredited diplomatic personnel and consulars of the Russian Federation in the United States may not be permitted to travel a distance in excess of 25 miles from their diplomatic post in the United States in a calendar quarter unless, on or before the last day of the preceding calendar quarter, the Director of the Federal Bureau of Investigation has certified in writing to the appropriate committees of Congress that during the preceding calendar quarter the Bureau did not identify any violations by accredited diplomatic personnel and consulars of the Russian Federation of applicable requirements to notify the United States Government in connection with travel by such diplomatic personnel and consulars of a distance in excess of 25 miles from their diplomatic post in the United States.

…(d) Waiver authority

(1) In general - The Director of the Federal Bureau of Investigation may waive any travel distance limitation imposed by subsection (b) if the Director determines that such a waiver will further the law enforcement or national security interests of the United States.

(2) Notification - Not later than 15 days after issuing a waiver under paragraph (1), the Director of the Federal Bureau of Investigation shall submit to the appropriate committees of Congress a notification that such waiver has been issued and the justification for the issuance of such waiver.

Stay tuned...