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Friday, March 29, 2013

Intelligence Authorization Legislation: Status and Challenges

Marshall Curtis Erwin
Analyst in Intelligence and National Security

Since President Bush signed the FY2005 Intelligence Authorization Act (P.L. 108-487) in December 2004, no subsequent intelligence authorization legislation was enacted until the FY2010 bill was signed by President Obama in October 2010 (after the end of FY2010), becoming P.L. 111-259. Although the National Security Act requires intelligence activities to be specifically authorized, this requirement had been satisfied in previous years by one-sentence catchall provisions in defense appropriations acts authorizing intelligence activities. This procedure meets the statutory requirement but has, according to some observers, weakened the ability of Congress to oversee intelligence activities.

Over the last two years, Congress has met its statutory requirement by passing three intelligence authorization bills that included classified schedules of authorizations and that were signed into law. Most recently, in December 2012, the House and Senate passed S. 3454, the intelligence authorization for FY2013, which was signed into law by the President on January 14, 2013 (P.L. 112-277). Key issues debated during the passage of these bills included the adequacy of Director of National Intelligence (DNI) authorities, Government Accountability Office (GAO) audit authority over the intelligence community, and measures to combat national security leaks. These three bills appear to reflect a determination to underscore the continuing need for specific annual intelligence authorization legislation.

Annual intelligence authorization acts were first passed in 1978 after the establishment of the two congressional intelligence committees and were enacted every year until 2005. These acts provided specific authorizations of intelligence activities and were accompanied by reports that provided detailed guidance to the nation’s intelligence agencies. The recent absence of intelligence authorization acts has meant that key intelligence issues have been addressed in defense authorization acts and defense appropriations acts that focus primarily on the activities of the Department of Defense (DOD).

Several Members have maintained that this procedure has been characterized by misplaced priorities and wasteful spending estimates that could run into billions. One example is the eventual cancellation of a highly classified and very costly overhead surveillance system that had been approved without support from the two intelligence committees.

The challenge for the 113
th Congress will be to help shape intelligence priorities while the intelligence community shifts from a decade of growth to a time of shrinking budgets. Reforms since 9/11 have attempted to create a more collaborative, integrated community. Reflecting that reality, intelligence priorities, and corresponding budget cuts, will be spread across six cabinet departments and two independent agencies. The two intelligence committees are positioned to have the most comprehensive information on intelligence activities broadly defined, including those conducted by agencies and those within DOD. Congress has an important role in intelligence oversight and in helping the community to avoid what DNI James Clapper in March 2013 called “another damaging downward spiral” similar to that which he said occurred after budget cuts in the 1990s. The annual intelligence authorization bill will be one of its most valuable legislative tools.

Date of Report: March 25, 2013
Number of Pages: 18
Order Number: R40240
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