"(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 "(e) SUPERCEDURE OF OTHER LAWS.-The provisions of subsection (a) may not be superseded except by a provision of law that is enacted after the date of the enactment of this section and that specifically cites and repeals or modifies such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 further amended as follows: 50 USC 403-5c, 403-5e, 432, 432a. 50 USC 431. 50 USC 432. 50 USC 432a. 10 USC 426 note. (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. 704. Operational files of the National Security Agency.". SEC. 923. INTEGRATION OF DEFENSE INTELLIGENCE, SURVEILLANCE, (a) FINDINGS.-Congress makes the following findings: (1) As part of transformation efforts within the Department of Defense, each of the Armed Forces is developing intelligence, surveillance, and reconnaissance capabilities that best support future war fighting as envisioned by the leadership of the military department concerned. (2) Concurrently, intelligence agencies of the Department of Defense outside the military departments are developing transformation roadmaps to best support the future decisionmaking and war fighting needs of their principal customers, but are not always closely coordinating those efforts with the intelligence, surveillance, and reconnaissance development efforts of the military departments. (3) A senior official of each military department has been designated as the integrator of intelligence, surveillance, and reconnaissance for each of the Armed Forces in such military department, but there is not currently a well-defined forum through which the integrators of intelligence, surveillance, and reconnaissance capabilities for each of the Armed Forces can routinely interact with each other and with senior representatives of Department of Defense intelligence agencies, as well as with other members of the intelligence community, to ensure unity of effort and to preclude unnecessary duplication of effort. (4) The current funding structure of a National Foreign Intelligence Program (NFIP), Joint Military Intelligence Program (JMIP), and Tactical Intelligence and Related Activities Program (TIARA) may not be the best approach for supporting the development of an intelligence, surveillance, and reconnaissance structure that is integrated to meet the national security requirements of the United States in the 21st century. (5) The position of Under Secretary of Defense for Intelligence was established in 2002 by Public Law 107-314 in order to facilitate resolution of the challenges to achieving an integrated intelligence, surveillance, and reconnaissance structure in the Department of Defense to meet such 21st century requirements. (b) GOAL.-It shall be a goal of the Department of Defense to fully integrate the intelligence, surveillance, and reconnaissance capabilities and coordinate the developmental activities of the military departments, intelligence agencies of the Department of Defense, and relevant combatant commands as those departments, agencies, and commands transform their intelligence, surveillance, and reconnaissance systems to meet current and future needs. (c) ISR INTEGRATION REQUIREMENTS.—(1) Subchapter I of chapter 21 of title 10, United States Code, is amended by adding at the end the following new section: "§ 426. Integration of Department of Defense intelligence, surveillance, and reconnaissance capabilities "(a) ISR INTEGRATION COUNCIL.-(1) The Under Secretary of Defense for Intelligence shall establish an Intelligence, Surveillance, and Reconnaissance Integration Council "(A) to assist the Under Secretary with respect to matters relating to the integration of intelligence, surveillance, and reconnaissance capabilities, and coordination of related developmental activities, of the military departments, intelligence agencies of the Department of Defense, and relevant combatant commands; and "(B) otherwise to provide a means to facilitate the integration of such capabilities and the coordiation of such developmental activities. "(2) The Council shall be composed of "(A) the senior intelligence officers of the armed forces and the United States Special Operations Command; "(B) the Director of Operations of the Joint Staff; and "(C) the directors of the intelligence agencies of the Department of Defense. "(3) The Under Secretary of Defense for Intelligence shall invite the participation of the Director of Central Intelligence (or that Director's representative) in the proceedings of the Council. "(b) ISR INTEGRATION ROADMAP.-(1) The Under Secretary of Defense for Intelligence shall develop a comprehensive plan, to be known as the 'Defense Intelligence, Surveillance, and Reconnaissance Integration Roadmap', to guide the development and integration of the Department of Defense intelligence, surveillance, and reconnaissance capabilities for the 15-year period of fiscal years 2004 through 2018. |