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]
[...]
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.
[...]
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.
[...]
