50 USC CHAPTER 45, SUBCHAPTER V: MANAGEMENT OF COUNTERINTELLIGENCE ACTIVITIES

From Title 50—WAR AND NATIONAL DEFENSECHAPTER 45—MISCELLANEOUS INTELLIGENCE COMMUNITY AUTHORITIES

SUBCHAPTER V—MANAGEMENT OF COUNTERINTELLIGENCE ACTIVITIES

§3381. Coordination of counterintelligence activities

(a) Establishment of Counterintelligence Policy Board

There is established within the executive branch of Government a National Counterintelligence Policy Board (in this section referred to as the "Board"). The Board shall report to the President through the National Security Council.

(b) Chairperson

The Director of the National Counterintelligence and Security Center appointed under section 902 of the Counterintelligence Enhancement Act of 2002 (50 U.S.C. 3382) shall serve as the chairperson of the Board.

(c) Membership

The membership of the National Counterintelligence Policy Board shall consist of the following:

(1) The Director of the National Counterintelligence and Security Center.

(2) Senior personnel of departments and elements of the United States Government, appointed by the head of the department or element concerned, as follows:

(A) The Department of Justice, including the Federal Bureau of Investigation.

(B) The Department of Defense, including the Joint Chiefs of Staff.

(D) The Department of Energy.

(E) The Central Intelligence Agency.

(F) Any other department, agency, or element of the United States Government specified by the President.

(d) Functions and discharge of functions

(1) The Board shall—

(A) serve as the principal mechanism for—

(i) developing policies and procedures for the approval of the President to govern the conduct of counterintelligence activities; and

(ii) upon the direction of the President, resolving conflicts that arise between elements of the Government conducting such activities; and

(B) act as an interagency working group to—

(i) ensure the discussion and review of matters relating to the implementation of the Counterintelligence Enhancement Act of 2002; and

(ii) provide advice to the Director of the National Counterintelligence and Security Center on priorities in the implementation of the National Counterintelligence Strategy produced pursuant to section 904(e)(2) of that Act (50 U.S.C. 3383(e)(2)).

(2) The Board may, for purposes of carrying out its functions under this section, establish such interagency boards and working groups as the Board considers appropriate.

(e) Coordination of counterintelligence matters with Federal Bureau of Investigation

(1) Except as provided in paragraph (5), the head of each department or agency within the executive branch shall ensure that—

(A) the Federal Bureau of Investigation is advised immediately of any information, regardless of its origin, which indicates that classified information is being, or may have been, disclosed in an unauthorized manner to a foreign power or an agent of a foreign power;

(B) following a report made pursuant to subparagraph (A), the Federal Bureau of Investigation is consulted with respect to all subsequent actions which may be undertaken by the department or agency concerned to determine the source of such loss or compromise; and

(C) where, after appropriate consultation with the department or agency concerned, the Federal Bureau of Investigation undertakes investigative activities to determine the source of the loss or compromise, the Federal Bureau of Investigation is given complete and timely access to the employees and records of the department or agency concerned for purposes of such investigative activities.

(2) Except as provided in paragraph (5), the Director of the Federal Bureau of Investigation shall ensure that espionage information obtained by the Federal Bureau of Investigation pertaining to the personnel, operations, or information of departments or agencies of the executive branch, is provided through appropriate channels in a timely manner to the department or agency concerned, and that such departments or agencies are consulted in a timely manner with respect to espionage investigations undertaken by the Federal Bureau of Investigation which involve the personnel, operations, or information of such department or agency.

(3)(A) The Director of the Federal Bureau of Investigation shall submit to the head of the department or agency concerned a written assessment of the potential impact of the actions of the department or agency on a counterintelligence investigation.

(B) The head of the department or agency concerned shall—

(i) use an assessment under subparagraph (A) as an aid in determining whether, and under what circumstances, the subject of an investigation under paragraph (1) should be left in place for investigative purposes; and

(ii) notify in writing the Director of the Federal Bureau of Investigation of such determination.

(C) The Director of the Federal Bureau of Investigation and the head of the department or agency concerned shall continue to consult, as appropriate, to review the status of an investigation covered by this paragraph, and to reassess, as appropriate, a determination of the head of the department or agency concerned to leave a subject in place for investigative purposes.

(4)(A) The Federal Bureau of Investigation shall notify appropriate officials within the executive branch, including the head of the department or agency concerned, of the commencement of a full field espionage investigation with respect to an employee within the executive branch.

(B) A department or agency may not conduct a polygraph examination, interrogate, or otherwise take any action that is likely to alert an employee covered by a notice under subparagraph (A) of an investigation described in that subparagraph without prior coordination and consultation with the Federal Bureau of Investigation.

(5) Where essential to meet extraordinary circumstances affecting vital national security interests of the United States, the President may on a case-by-case basis waive the requirements of paragraph (1), (2), or (3), as they apply to the head of a particular department or agency, or the Director of the Federal Bureau of Investigation. Such waiver shall be in writing and shall fully state the justification for such waiver. Within thirty days, the President shall notify the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives that such waiver has been issued, and at that time or as soon as national security considerations permit, provide these committees with a complete explanation of the circumstances which necessitated such waiver.

(6) Nothing in this section may be construed to alter the existing jurisdictional arrangements between the Federal Bureau of Investigation and the Department of Defense with respect to investigations of persons subject to the Uniform Code of Military Justice, nor to impose additional reporting requirements upon the Department of Defense with respect to such investigations beyond those required by existing law and executive branch policy.

(7) As used in this section, the terms "foreign power" and "agent of a foreign power" have the same meanings as set forth in subsections (a) and (b) of section 1801, respectively, of this title.

(Pub. L. 103–359, title VIII, §811, Oct. 14, 1994, 108 Stat. 3455; Pub. L. 106–120, title VI, §602, Dec. 3, 1999, 113 Stat. 1620; Pub. L. 106–567, title VI, §605, Dec. 27, 2000, 114 Stat. 2853; Pub. L. 107–306, title VIII, §811(b)(5)(B), title IX, §903, Nov. 27, 2002, 116 Stat. 2424, 2433; Pub. L. 108–177, title III, §361(g), Dec. 13, 2003, 117 Stat. 2625; Pub. L. 108–458, title I, §1071(g)(1), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 115–31, div. N, title IV, §401(f), May 5, 2017, 131 Stat. 819; Pub. L. 118–31, div. G, title III, §7305(b)(2), title IX, §7901(j), Dec. 22, 2023, 137 Stat. 1026, 1107.)

Editorial Notes

References in Text

The Counterintelligence Enhancement Act of 2002, referred to in subsec. (d)(1)(B), is title IX of Pub. L. 107–306, Nov. 27, 2002, 116 Stat. 2432. For complete classification of this Act to the Code, see Tables.

Codification

Section was formerly classified to section 402a of this title prior to editorial reclassification and renumbering as this section. Some section numbers of this title referenced in amendment notes below reflect the classification of such sections prior to their editorial reclassification.

Amendments

2023—Subsec. (d)(1)(B)(ii). Pub. L. 118–31, §7305(b)(2), substituted "section 904(e)(2) of that Act (50 U.S.C. 3383(e)(2))" for "section 904(d)(2) of that Act (50 U.S.C. 3383(d)(2))".

Subsec. (e)(7). Pub. L. 118–31, §7901(j), substituted "subsections (a) and (b) of section 1801" for "sections 1801(a) and (b)".

2017—Subsec. (b). Pub. L. 115–31, §401(f)(1), substituted "Director of the National Counterintelligence and Security Center appointed under section 902 of the Counterintelligence Enhancement Act of 2002 (50 U.S.C. 3382)" for "National Counterintelligence Executive under section 902 of the Counterintelligence Enhancement Act of 2002".

Subsec. (c)(1). Pub. L. 115–31, §401(f)(2), substituted "Director of the National Counterintelligence and Security Center." for "National Counterintelligence Executive."

Subsec. (d)(1)(B)(ii). Pub. L. 115–31, §401(f)(3), substituted "Director of the National Counterintelligence and Security Center" for "National Counterintelligence Executive" and "pursuant to section 904(d)(2) of that Act (50 U.S.C. 3383(d)(2))" for "by the Office of the National Counterintelligence Executive under section 904(e)(2) of that Act".

2004—Subsec. (c)(6)(C). Pub. L. 108–458, which directed amendment of subsec. (c)(6)(C) by substituting "Director of National Intelligence" for "Director of Central Intelligence", could not be executed because of the amendments by Pub. L. 107–306, §903(a)(2), and Pub. L. 108–177. See 2002 and 2003 Amendment notes below.

2003—Subsec. (e). Pub. L. 108–177, which directed the amendment of subsec. (c) by redesignating pars. (7) and (8) as (6) and (7), respectively, and striking out former par. (6), was executed by making the amendment to subsec. (e) to reflect the probable intent of Congress and the redesignation of subsec. (c) as (e) by Pub. L. 107–306, §903(a)(2), see below. Prior to amendment, par. (6) read as follows:

"(6)(A) Not later each year than the date provided in section 415b of this title, the Director of the Federal Bureau of Investigation shall submit to the congressional intelligence committees (as defined in section 401a of this title) a report with respect to compliance with paragraphs (1) and (2) during the previous calendar year.

"(B) Not later than February 1 each year, the Director shall, in accordance with applicable security procedures, submit to the Committees on the Judiciary of the Senate and House of Representatives a report with respect to compliance with paragraphs (1) and (2) during the previous calendar year.

"(C) The Director of the Federal Bureau of Investigation shall submit each report under this paragraph in consultation with the Director of Central Intelligence and the Secretary of Defense."

2002—Subsec. (b). Pub. L. 107–306, §903(a)(1), (3), added subsec. (b) and struck out heading and text of former subsec. (b). Text read as follows: "The Board shall serve as the principal mechanism for—

"(1) developing policies and procedures for the approval of the President to govern the conduct of counterintelligence activities; and

"(2) resolving conflicts, as directed by the President, which may arise between elements of the Government which carry out such activities."

Subsec. (c). Pub. L. 107–306, §903(b), added subsec. (c). Former subsec. (c) redesignated (e).

Subsec. (c)(6). Pub. L. 107–306, §811(b)(5)(B), amended par. (6) generally. Prior to amendment, par. (6) read as follows: "The Director of the Federal Bureau of Investigation shall, in consultation with the Director of Central Intelligence and the Secretary of Defense, report annually, beginning on February 1, 1995, and continuing each year thereafter, to the Select Committee on Intelligence of the Senate and to the Permanent Select Committee on Intelligence of the House of Representatives and, in accordance with applicable security procedures, the Committees on the Judiciary of the House of Representatives and the Senate with respect to compliance with paragraphs (1) and (2) during the previous calendar year."

Subsec. (d). Pub. L. 107–306, §903(c), added subsec. (d).

Subsec. (e). Pub. L. 107–306, §903(a)(2), redesignated subsec. (c) as (e).

2000—Subsec. (c)(1). Pub. L. 106–567, §605(a)(1), substituted "paragraph (5)" for "paragraph (3)".

Subsec. (c)(2). Pub. L. 106–567, §605(a)(1), (b), substituted "paragraph (5)" for "paragraph (3)" and inserted "in a timely manner" after "through appropriate channels" and "are consulted".

Subsec. (c)(3). Pub. L. 106–567, §605(a)(3), added par. (3). Former par. (3) redesignated (5).

Subsec. (c)(4). Pub. L. 106–567, §605(a), (c), added par. (4). Former par. (4) redesignated (6).

Subsec. (c)(5). Pub. L. 106–567, §605(a)(2), (4), redesignated par. (3) as (5) and substituted "paragraph (1), (2), or (3)" for "paragraph (1) or (2)". Former par. (5) redesignated (7).

Subsec. (c)(6) to (8). Pub. L. 106–567, §605(a)(2), redesignated pars. (4) to (6) as (6) to (8), respectively.

1999—Subsec. (c)(2). Pub. L. 106–120 struck out "after a report has been provided pursuant to paragraph (1)(A)" before period at end.

Statutory Notes and Related Subsidiaries

Effective Date of 2004 Amendment

For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memorandum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title.

Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title.

Effective Date of 2003 Amendment

Amendment by Pub. L. 108–177 effective Dec. 31, 2003, see section 361(n) of Pub. L. 108–177, set out as a note under section 1611 of Title 10, Armed Forces.

Annual Reports on Intelligence Activities of the People's Republic of China

Pub. L. 105–107, title III, §308, Nov. 20, 1997, 111 Stat. 2253, as amended by Pub. L. 107–306, title VIII, §811(b)(5)(D), Nov. 27, 2002, 116 Stat. 2424, related to annual reports to Congress by the Director of Central Intelligence and the Director of the Federal Bureau of Investigation on intelligence activities of the People's Republic of China directed against or affecting the interests of the United States, prior to repeal by Pub. L. 108–177, title III, §361(f), Dec. 13, 2003, 117 Stat. 2625.

§3382. Director of the National Counterintelligence and Security Center

(a) Establishment

There shall be a Director of the National Counterintelligence and Security Center (referred to in this section as the "Director"), who shall be appointed by the President, by and with the advice and consent of the Senate.

(b) Mission

The mission of the Director shall be to serve as the head of national counterintelligence for the United States Government.

(c) Duties

Subject to the direction and control of the Director of National Intelligence, the duties of the Director are as follows:

(1) To carry out the mission referred to in subsection (b).

(2) To act as chairperson of the National Counterintelligence Policy Board established under section 3381 of this title.

(3) To act as head of the National Counterintelligence and Security Center established under section 3383 of this title.

(4) To participate as an observer on such boards, committees, and entities of the executive branch as the Director of National Intelligence considers appropriate for the discharge of the mission and functions of the Director and the National Counterintelligence and Security Center under section 3383 of this title.

(Pub. L. 107–306, title IX, §902, Nov. 27, 2002, 116 Stat. 2432; Pub. L. 108–458, title I, §1072(d)(1)(B), Dec. 17, 2004, 118 Stat. 3693; Pub. L. 114–113, div. M, title IV, §401(a), Dec. 18, 2015, 129 Stat. 2920; Pub. L. 115–31, div. N, title IV, §401(a)(1), (3), May 5, 2017, 131 Stat. 816, 817.)

Editorial Notes

Codification

Section was formerly classified to section 402b of this title prior to editorial reclassification and renumbering as this section.

Amendments

2017—Pub. L. 115–31, §401(a)(1), amended section generally. Prior to amendment, section related to the National Counterintelligence Executive.

Subsec. (a). Pub. L. 115–31, §401(a)(3), provided that the amendment made by Pub. L. 114–113, §401(a), was deemed to not have taken effect. See 2015 Amendment and Effective Date of 2015 Amendment notes below.

2015—Subsec. (a). Pub. L. 114–113, which directed that subsec. (a) be amended to read as follows:

"(a) Establishment.—There shall be a National Counterintelligence Executive who shall be appointed by the President, by and with the advice and consent of the Senate.",

was deemed to not have taken effect by Pub. L. 115–31, §401(a)(3). See 2017 Amendment note above.

2004—Subsec. (a)(1). Pub. L. 108–458, §1072(d)(1)(B)(i), substituted "Director of National Intelligence" for "President".

Subsec. (a)(2). Pub. L. 108–458, §1072(d)(1)(B), substituted "Director of National Intelligence" for "President" and "Director of the Central Intelligence Agency" for "Director of Central Intelligence".

Subsec. (c). Pub. L. 108–458, §1072(d)(1)(B)(i), substituted "Director of National Intelligence" for "President" in two places.

Statutory Notes and Related Subsidiaries

Effective Date of 2015 Amendment

Pub. L. 115–31, div. N, title IV, §401(a)(3), May 5, 2017, 131 Stat. 817, provided that: "The amendment made by subsection (a) of section 401 of the Intelligence Authorization Act for Fiscal Year 2016 (division M of Public Law 114–113) [amending this section] shall not take effect, or, if the date of the enactment of this Act [May 5, 2017] is on or after the effective date specified in subsection (b) of such section [Dec. 18, 2016, see note below], such amendment shall be deemed to not have taken effect."

Pub. L. 114–113, div. M, title IV, §401(b), Dec. 18, 2015, 129 Stat. 2921, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date that is one year after the date of the enactment of this Act [Dec. 18, 2015]."

Effective Date of 2004 Amendment

Purpose

Pub. L. 107–306, title IX, §901(b), Nov. 27, 2002, 116 Stat. 2432, provided that: "The purpose of this title [see Tables for classification] is to facilitate the enhancement of the counterintelligence activities of the United States Government by—

"(1) enabling the counterintelligence community of the United States Government to fulfill better its mission of identifying, assessing, prioritizing, and countering the intelligence threats to the United States;

"(2) ensuring that the counterintelligence community of the United States Government acts in an efficient and effective manner; and

"(3) providing for the integration of all the counterintelligence activities of the United States Government."

§3383. National Counterintelligence and Security Center

(a) Establishment

There shall be a National Counterintelligence and Security Center.

(b) Head of Center

The Director of the National Counterintelligence and Security Center shall be the head of the National Counterintelligence and Security Center.

(c) Location of Center

The National Counterintelligence and Security Center shall be located in the Office of the Director of National Intelligence.

(d) Mission

The mission of the National Counterintelligence and Security Center shall include organizing and leading strategic planning for counterintelligence activities of the United States Government by integrating instruments of national power as needed to counter foreign intelligence activities.

(e) Functions

Subject to the direction and control of the Director of the National Counterintelligence and Security Center, the functions of the National Counterintelligence and Security Center shall be as follows:

(1) National threat identification and prioritization assessment

Subject to subsection (f), in consultation with appropriate department and agencies of the United States Government, and private sector entities, to produce a strategic planning assessment of the counterintelligence requirements of the United States to be known as the National Threat Identification and Prioritization Assessment.

(2) National Counterintelligence Strategy

(A) Requirement to produce

Subject to subsection (f), in consultation with appropriate department and agencies of the United States Government, and private sector entities, and based on the most current National Threat Identification and Prioritization Assessment under paragraph (1), to produce a strategy for the counterintelligence programs and activities of the United States Government to be known as the National Counterintelligence Strategy.

(B) Revision and requirement

The National Counterintelligence Strategy shall be revised or updated at least once every three years and shall be aligned with the strategy and policies of the Director of National Intelligence.

(3) Implementation of National Counterintelligence Strategy

To evaluate on an ongoing basis the implementation of the National Counterintelligence Strategy and to submit to the President periodic reports on such evaluation, including a discussion of any shortfalls in the implementation of the Strategy and recommendations for remedies for such shortfalls.

(4) National counterintelligence strategic analyses

As directed by the Director of National Intelligence and in consultation with appropriate elements of the departments and agencies of the United States Government, to oversee and coordinate the production of strategic analyses of counterintelligence matters, including the production of counterintelligence damage assessments and assessments of lessons learned from counterintelligence activities.

(5) National counterintelligence program budget

At the direction of the Director of National Intelligence—

(A) to coordinate the development of budgets and resource allocation plans for the counterintelligence programs and activities of the Department of Defense, the Federal Bureau of Investigation, the Central Intelligence Agency, and other appropriate elements of the United States Government;

(B) to ensure that the budgets and resource allocation plans developed under subparagraph (A) address the objectives and priorities for counterintelligence under the National Counterintelligence Strategy; and

(C) to submit to the National Security Council periodic reports on the activities undertaken by the Office under subparagraphs (A) and (B).

(6) National counterintelligence collection and targeting coordination

To develop priorities for counterintelligence investigations and operations, and for collection of counterintelligence, for purposes of the National Counterintelligence Strategy, except that the National Counterintelligence and Security Center may not—

(A) carry out any counterintelligence investigations or operations; or

(B) establish its own contacts, or carry out its own activities, with foreign intelligence services.

(7) National counterintelligence outreach, watch, and warning

(A) Counterintelligence vulnerability assessments and surveys

To develop standards and criteria for counterintelligence risk assessments and surveys of the vulnerability of the United States to intelligence threats, including with respect to critical infrastructure and critical technologies, in order to identify the areas, programs, and activities that require protection from such threats.

(B) Outreach

To carry out and coordinate outreach programs and activities on counterintelligence to other elements of the United States Government, and the private sector, and to coordinate the dissemination to the public of warnings on intelligence threats to the United States.

(C) Research and development

To ensure that research and development programs and activities of the United States Government, and the private sector, direct attention to the needs of the counterintelligence community for technologies, products, and services.

(D) Training and professional development

To develop policies and standards for training and professional development of individuals engaged in counterintelligence activities and to manage the conduct of joint training exercises for such personnel.

(E) Vulnerabilities from foreign commercial spyware

(i) Consultation

In carrying out efforts to secure covered devices, to consult with the private sector of the United States and reputable third-party researchers to identify vulnerabilities from foreign commercial spyware (as defined in section 3232a(a) of this title) and maintain effective security measures for such devices.

(ii) Covered device defined

In this subparagraph, the term "covered device" means any electronic mobile device including smartphones, tablet computing devices, or laptop computing devices, that is issued by an element of the intelligence community for official use.

(f) Additional requirements regarding National Threat Identification and Prioritization Assessment and National Counterintelligence Strategy

(1) A National Threat Identification and Prioritization Assessment under subsection (e)(1), and any modification of such assessment, shall not go into effect until approved by the President.

(2) A National Counterintelligence Strategy under subsection (e)(2), and any modification of such strategy, shall not go into effect until approved by the President.

(3) The National Counterintelligence Executive shall submit to the congressional intelligence committees each National Threat Identification and Prioritization Assessment, or modification thereof, and each National Counterintelligence Strategy, or modification thereof, approved under this section.

(4) In this subsection, the term "congressional intelligence committees" means—

(A) the Select Committee on Intelligence of the Senate; and

(B) the Permanent Select Committee on Intelligence of the House of Representatives.

(g) Personnel

(1) Personnel of the National Counterintelligence and Security Center may consist of personnel employed by the Center or personnel on detail from any other department, agency, or element of the Federal Government. Any such detail may be on a reimbursable or nonreimbursable basis, at the election of the head of the agency detailing such personnel.

(2) Notwithstanding section 104(d) ¹ or any other provision of law limiting the period of the detail of personnel on a nonreimbursable basis, the detail of an officer or employee of United States or a member of the Armed Forces under paragraph (1) on a nonreimbursable basis may be for any period in excess of one year that the Director of the National Counterintelligence and Security Center and the head of the department, agency, or element concerned consider appropriate.

(h) Treatment of activities under certain administrative laws

The files of the National Counterintelligence and Security Center shall be treated as operational files of the Central Intelligence Agency for purposes of section 701 of the National Security Act of 1947 (50 U.S.C. 3141) to the extent such files meet criteria under subsection (b) of that section for treatment of files as operational files of an element of the Agency.

(i) Oversight by Congress

The location of the National Counterintelligence and Security Center within the Office of the Director of National Intelligence shall not be construed as affecting access by Congress, or any committee of Congress, to—

(1) any information, document, record, or paper in the possession of the Center; or

(2) any personnel of the Center.

(j) Construction

Nothing in this section shall be construed as affecting the authority of the Director of National Intelligence, the Secretary of Defense, the Secretary of State, the Attorney General, or the Director of the Federal Bureau of Investigation as provided or specified under the National Security Act of 1947 or under other provisions of law.

(Pub. L. 107–306, title IX, §904, Nov. 27, 2002, 116 Stat. 2434; Pub. L. 108–458, title I, §§1071(g)(2)(B), 1072(d)(1)(C), Dec. 17, 2004, 118 Stat. 3691, 3693; Pub. L. 111–259, title IV, §412, Oct. 7, 2010, 124 Stat. 2725; Pub. L. 112–18, title IV, §401, June 8, 2011, 125 Stat. 227; Pub. L. 112–87, title III, §311(b), Jan. 3, 2012, 125 Stat. 1886; Pub. L. 115–31, div. N, title IV, §401(b)(1)–(5), May 5, 2017, 131 Stat. 817, 818; Pub. L. 117–263, div. F, title LXIII, §6318(d)(4), Dec. 23, 2022, 136 Stat. 3521; Pub. L. 118–31, div. G, title III, §§7303, 7305(a), (b)(1), Dec. 22, 2023, 137 Stat. 1025, 1026.)

Editorial Notes

References in Text

Section 104(d), referred to in subsec. (g)(2), is section 104(d) of Pub. L. 107–306, title I, Nov. 27, 2002, 116 Stat. 2387, which is not classified to the Code.

The National Security Act of 1947, referred to in subsec. (j), is act July 26, 1947, ch. 343, 61 Stat. 495, which is classified principally to chapter 44 (§3001 et seq.) of this title. For complete classification of this Act to the Code, see Tables.

Codification

Section was formerly classified to section 402c of this title prior to editorial reclassification and renumbering as this section.

Amendments

2023—Subsec. (d). Pub. L. 118–31, §7305(a)(2), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (d)(7)(A). Pub. L. 118–31, §7303, amended subpar. (A) generally. Prior to amendment, text read as follows: "To carry out and coordinate surveys of the vulnerability of the United States Government, and the private sector, to intelligence threats in order to identify the areas, programs, and activities that require protection from such threats."

Subsec. (e). Pub. L. 118–31, §7305(a)(1), (b)(1)(A), redesignated subsec. (d) as (e) and substituted "Subject to subsection (f)" for "Subject to subsection (e)" in pars. (1) and (2)(A). Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 118–31, §7305(a)(1), (b)(1)(B), redesignated subsec. (e) as (f) and substituted "subsection (e)(1)" for "subsection (d)(1)" in par. (1) and "subsection (e)(2)" for "subsection (d)(2)" in par. (2). Former subsec. (f) redesignated (g).

Subsecs. (g) to (j). Pub. L. 118–31, §7305(a)(1), redesignated subsecs. (f) to (i) as (g) to (j), respectively.

2022—Subsec. (d)(7)(E). Pub. L. 117–263 added subpar. (E).

2017—Pub. L. 115–31, §401(b)(1)(A), substituted "National Counterintelligence and Security Center" for "Office of the National Counterintelligence Executive" in section catchline.

Subsecs. (a) to (c). Pub. L. 115–31, §401(b)(1)(B), added subsecs. (a) to (c) and struck out former subsecs. (a) to (c) which related to establishment of Office of the National Counterintelligence Executive, head of Office, and location of Office, respectively.

Subsec. (d). Pub. L. 115–31, §401(b)(2)(A), substituted "Director of the National Counterintelligence and Security Center, the functions of the National Counterintelligence and Security Center" for "National Counterintelligence Executive, the functions of the Office of the National Counterintelligence Executive" in introductory provisions.

Subsec. (d)(5). Pub. L. 115–31, §401(b)(2)(B), substituted "At the direction of" for "In consultation with" in introductory provisions.

Subsec. (d)(6). Pub. L. 115–31, §401(b)(2)(C), substituted "National Counterintelligence and Security Center" for "Office" in introductory provisions.

Subsec. (f)(1). Pub. L. 115–31, §401(b)(3)(A), substituted "National Counterintelligence and Security Center may consist of personnel employed by the Center" for "Office of the National Counterintelligence Executive may consist of personnel employed by the Office".

Subsec. (f)(2). Pub. L. 115–31, §401(b)(3)(B), substituted "Director of the National Counterintelligence and Security Center" for "National Counterintelligence Executive".

Subsec. (g). Pub. L. 115–31, §401(b)(4), substituted "National Counterintelligence and Security Center shall be treated as operational files of the Central Intelligence Agency for purposes of section 701 of the National Security Act of 1947 (50 U.S.C. 3141)" for "Office shall be treated as operational files of the Central Intelligence Agency for purposes of section 701 of the National Security Act of 1947 (50 U.S.C. 431)".

Subsec. (h). Pub. L. 115–31, §401(b)(5)(A), substituted "National Counterintelligence and Security Center" for "Office of the National Counterintelligence Executive" in introductory provisions.

Subsec. (h)(1), (2). Pub. L. 115–31, §401(b)(5)(B), substituted "Center" for "Office".

2012—Subsec. (d)(1). Pub. L. 112–87 struck out "on an annual basis" after "to produce".

2011—Subsec. (d)(2). Pub. L. 112–18 inserted subpar. (A) designation and heading, struck out "on an annual basis" after "to produce", and added subpar. (B).

2010—Subsec. (d). Pub. L. 111–259, §412(a)(1), (2), redesignated subsec. (e) as (d) and struck out former subsec. (d). Text read as follows:

"(1) There shall be in the Office of the National Counterintelligence Executive a general counsel who shall serve as principal legal advisor to the National Counterintelligence Executive.

"(2) The general counsel shall—

"(A) provide legal advice and counsel to the Executive on matters relating to functions of the Office;

"(B) ensure that the Office complies with all applicable laws, regulations, Executive orders, and guidelines; and

"(C) carry out such other duties as the Executive may specify."

Subsec. (d)(1), (2). Pub. L. 111–259, §412(b)(1), substituted "subsection (e)" for "subsection (f)".

Subsec. (e). Pub. L. 111–259, §412(a)(2), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d).

Subsec. (e)(1). Pub. L. 111–259, §412(b)(2)(A), substituted "subsection (d)(1)" for "subsection (e)(1)".

Subsec. (e)(2). Pub. L. 111–259, §412(b)(2)(B), substituted "subsection (d)(2)" for "subsection (e)(2)".

Subsec. (f). Pub. L. 111–259, §412(a)(2), redesignated subsec. (g) as (f). Former subsec. (f) redesignated (e).

Subsec. (f)(3), (4). Pub. L. 111–259, §412(a)(3), struck out pars. (3) and (4) which read as follows:

"(3) The employment of personnel by the Office, including the appointment, compensation and benefits, management, and separation of such personnel, shall be governed by the provisions of law on such matters with respect to the personnel of the Central Intelligence Agency, except that, for purposes of the applicability of such provisions of law to personnel of the Office, the National Counterintelligence Executive shall be treated as the head of the Office.

"(4) Positions in the Office shall be excepted service positions for purposes of title 5."

Subsecs. (g) to (m). Pub. L. 111–259, §412(a)(1), (2), redesignated subsecs. (k) to (m) as (g) to (i), respectively, and struck out former subsecs. (h) to (j) which related to support, availability of funds for reimbursement, and contracts, respectively. Former subsec. (g) redesignated (f).

2004—Subsec. (c). Pub. L. 108–458, §1072(d)(1)(C)(i), substituted "Office of the Director of National Intelligence" for "Office of the Director of Central Intelligence".

Subsec. (e)(4). Pub. L. 108–458, §1071(g)(2)(B)(i), substituted "Director of National Intelligence" for "Director of Central Intelligence".

Subsec. (e)(5). Pub. L. 108–458, §1071(g)(2)(B)(ii), substituted "Director of National Intelligence" for "Director of Central Intelligence" in introductory provisions.

Subsec. (h)(1), (2). Pub. L. 108–458, §1071(g)(2)(B)(iii), substituted "Director of National Intelligence" for "Director of Central Intelligence".

Subsec. (l). Pub. L. 108–458, §1072(d)(1)(C)(ii), substituted "Office of the Director of National Intelligence" for "Office of the Director of Central Intelligence" in introductory provisions.

Subsec. (m). Pub. L. 108–458, §1071(g)(2)(B)(iv), substituted "Director of National Intelligence" for "Director of Central Intelligence".

Statutory Notes and Related Subsidiaries

Effective Date of 2004 Amendment

Rule of Construction—No Enhanced Authorities

Nothing in amendment made by Pub. L. 117–263 to be construed as enhancing, or otherwise changing, the authorities of the intelligence community to target, collect, process, or disseminate information regarding United States Government personnel, see section 6318(e) of Pub. L. 117–263, set out as a note under section 3232a of this title.

¹ See References in Text note below.

§3384. Intelligence Community Counterintelligence Office at the Department of Agriculture

(a) Definitions

In this section:

(1) Department

The term "Department" means the Department of Agriculture.

(2) Secretary

The term "Secretary" means the Secretary of Agriculture.

(b)Omitted

(c) Establishment of Intelligence Community Counterintelligence Office

(1) Agreement with Secretary of Agriculture

The Director of National Intelligence, acting through the Director of the National Counterintelligence and Security Center, shall seek to enter into an agreement with the Secretary under which the Director of National Intelligence and the Secretary shall establish within the Department an office, which shall be known as the "Intelligence Community Counterintelligence Office", in accordance with this section.

(2) Location

The Intelligence Community Counterintelligence Office established pursuant to this section shall be physically located within the headquarters of the Department and within reasonable proximity to the offices of the leadership of the Department.

(3) Security

The Director of the National Counterintelligence and Security Center shall be responsible for the protection of classified information and for the establishment and enforcement of all security-related controls within the Intelligence Community Counterintelligence Office.

(d) Personnel

(1) Director

(A) Appointment

There shall be at the head of the Intelligence Community Counterintelligence Office a Director who is appointed by the Director of National Intelligence. The Director of the Intelligence Community Counterintelligence Office shall—

(i) be supervised and subject to performance evaluations by the Director of the National Counterintelligence and Security Center, in consultation with the Secretary;

(ii) be an employee of the intelligence community with significant counterintelligence experience; and

(iii) serve for a period of 3 years.

(B) Responsibilities

The Director of the Intelligence Community Counterintelligence Office shall carry out the following responsibilities:

(i) Serving as the head of the Intelligence Community Counterintelligence Office, with supervisory responsibility for the Intelligence Community Counterintelligence Office and any other personnel assigned to the Intelligence Community Counterintelligence Office.

(ii) Advising the Secretary on counterintelligence and intelligence information.

(iii) Ensuring that counterintelligence threat information and, as appropriate, finished intelligence on topics related to the functions of the Department, are provided to appropriate personnel of the department or agency without delay.

(iv) Ensuring critical intelligence relevant to the Secretary is requested and disseminated in a timely manner.

(v) Establishing, as appropriate, mechanisms for collaboration through which Department subject matter experts, including those without security clearances, can share information and expertise with the intelligence community.

(vi) Correlating and evaluating counterintelligence threats identified within intelligence community reporting, in coordination with the National Counterintelligence and Security Center, and providing appropriate dissemination of such intelligence to officials of the Department with a need-to-know.

(vii) Advising the Secretary on methods to improve the counterintelligence posture of the Department.

(viii) Where appropriate, supporting the Department's leadership in engaging with the National Security Council.

(ix) In coordination with the National Counterintelligence and Security Center, establishing counterintelligence partnerships to improve the counterintelligence defense of the Department.

(2) Deputy Director

There shall be within the Intelligence Community Counterintelligence Office a Deputy Director who is appointed by the Secretary, in coordination with the Director of National Intelligence. The Deputy Director shall—

(A) be supervised and subject to performance evaluations by the Secretary, in consultation with the Director of the National Counterintelligence and Security Center;

(B) be a current or former employee of the Department with significant experience within the Department; and

(3) Other employees

(A) Joint duty assignment

There shall be within the Intelligence Community Counterintelligence Office such other employees as the Director of National Intelligence, in consultation with the Secretary, determines appropriate. Employment at the Intelligence Community Counterintelligence Office is an intelligence community joint duty assignment. A permanent change of station to the Intelligence Community Counterintelligence Office shall be for a period of not less than 2 years.

(B) Supervision

The Director of the Intelligence Community Counterintelligence Office shall be responsible for the supervision and management of employees assigned to the Intelligence Community Counterintelligence Office, including employees assigned by program elements of the intelligence community and other Federal departments and agencies, as appropriate.

(C) Joint duty or assigned personnel reimbursement

The Director of National Intelligence shall reimburse a program element of the intelligence community or a Federal department or agency for any permanent change of station employee assigned to the Intelligence Community Counterintelligence Office from amounts authorized to be appropriated for the Office of the Director of National Intelligence.

(D) Operation under authority of Director of National Intelligence

Employees assigned to the Intelligence Community Counterintelligence Office under this paragraph shall operate under the authorities of the Director of National Intelligence for the duration of their assignment or period of employment within the Intelligence Community Counterintelligence Office, except for temporary duty assignment employees.

(E) Incentive pay

(i) In general

An employee who accepts employment at the Intelligence Community Counterintelligence Office during the 120-day period after the date of the establishment of the Intelligence Community Counterintelligence Office shall receive an incentive payment, which shall be payable by the Director of National Intelligence, in an amount equal to 10 percent of the base annual pay of the employee. Such an employee who completes 2 years of service in the Intelligence Community Counterintelligence Office may receive an incentive payment in an amount equal to 10 percent of the base annual pay of the employee if the Director of the Intelligence Community Counterintelligence Office determines the performance of the employee is exceptional.

(ii) Eligibility

An employee is only eligible for an incentive payment under clause (i) if the employee enters into an agreement with the Director of National Intelligence to serve in the Intelligence Community Counterintelligence Office for a period of at least 2 years.

(e) Funding

To the extent and in such amounts as specifically provided in advance in appropriations Acts for the purposes detailed in this subsection, the Director of National Intelligence may expend such sums as are authorized within the National Intelligence Program of the Office of the Director of National Intelligence for—

(1) the renovation, furnishing, and equipping of a Federal building, as necessary, to meet the security and operational requirements of the Intelligence Community Counterintelligence Office;

(2) the provision of connectivity to the Intelligence Community Counterintelligence Office to enable briefings, secure audio and video communications, and collaboration between employees of the Department and the intelligence community at the unclassified, secret, and top secret levels;

(3) the provision of other information technology systems and devices, such as computers, printers, and phones, for use by employees of the Intelligence Community Counterintelligence Office;

(4) the assignment of employees of the intelligence community to support the operation of the Intelligence Community Counterintelligence Office; and

(5) the provision of other personal services necessary for the operation of the Intelligence Community Counterintelligence Office.

(f) Deadline for establishment of the Intelligence Community Counterintelligence Office

(1) Establishment

Not later than January 1, 2025, the Director of National Intelligence shall seek to establish, in accordance with this section, the Intelligence Community Counterintelligence Office within the Department.

(2) Report

Not later than 180 days after December 22, 2023, the Director of National Intelligence shall submit to the congressional intelligence committees, the Committee on Appropriations of the Senate, and the Committee on Appropriations of the House of Representatives a report on the plan to establish the Intelligence Community Counterintelligence Office required under paragraph (1). Such report shall include the costs and schedule associated with establishing the Intelligence Community Counterintelligence Office.

(Pub. L. 118–31, div. G, title III, §7318, Dec. 22, 2023, 137 Stat. 1033.)

Editorial Notes

Codification

Section is comprised of section 7318 of Pub. L. 118–31. Subsec. (b) of section 7318 of Pub. L. 118–31 repealed section 415 of Pub. L. 117–103, formerly set out as a note under section 532 of Title 28, Judiciary and Judicial Procedure.

Statutory Notes and Related Subsidiaries

Definitions

For definitions of "intelligence community" and "congressional intelligence committees" as used in this section, see section 7002 of Pub. L. 118–31, set out as a note under section 3003 of this title.

§3385. Benjamin Tallmadge Institute as primary Central Intelligence Agency entity for education and training in counterintelligence

(a) In general

The Director of the Central Intelligence Agency shall maintain the Benjamin Tallmadge Institute as the primary entity within the Central Intelligence Agency for education and training related to all aspects of counterintelligence.

(b) Responsibilities of Director

The Director of the Central Intelligence Agency shall—

(1) ensure the Institute is fully and properly organized and has the resources necessary to provide counterintelligence education and training for all career fields within the Agency, including specialized certifications for Agency counterintelligence personnel;

(2) develop appropriate certification courses that are designed to educate, train, and certify Agency personnel in—

(A) counterintelligence threats, insider threats, and other counterintelligence processes and issues;

(B) the conduct and support of counterintelligence inquiries and investigations;

(D) any other skills as the Director determines necessary;

(3) identify and designate specific positions for which an individual shall be required to have a certification described in paragraph (2) prior to filling such a position; and

(4) develop necessary infrastructure and capacity to support the availability of courses under subsection (c) to increase participation by personnel from other components of the intelligence community in the courses offered by the Institute.

(c) Training and familiarization courses

(1) In general

The head of the Institute shall—

(A) develop training and familiarization courses at different classification levels, including courses at an unclassified level; and

(B) offer instruction in the courses developed under subparagraph (A) or make training curricula available to other intelligence community components, as appropriate, to support outreach efforts.

(2) Availability of courses

The training and familiarization courses developed under paragraph (1) shall be made available to any of the following that have a need and appropriate clearance, as determined by the Director of the National Counterintelligence and Security Center in consultation with the Director of the Central Intelligence Agency, for a general education on counterintelligence threats, briefings on specific topics, or other training related to counterintelligence:

(A) Federal departments and agencies that are not elements of the intelligence community.

(B) State, local, and Tribal governments.

(D) Such other personnel and entities as appropriate.

(d) Baseline certification course

(1) In general

The Institute shall develop, in coordination with the National Counterintelligence and Security Center and the Defense Intelligence Agency, and implement a baseline certification course for all counterintelligence career professionals that aligns the minimum certification requirements of the course and the Defense Counterintelligence Agent Course of the Joint Counterintelligence Training Activity.

(2) Availability of course

The baseline certification course developed under paragraph (1) shall be made available, on a space-available basis, to all intelligence community professionals and appropriate personnel with appropriate security clearance from any other agency, committee, commission, office, or other establishment in the executive, legislative, or judicial branch of the Federal Government.

(Pub. L. 118–31, div. G, title III, §7334, Dec. 22, 2023, 137 Stat. 1046.)

Statutory Notes and Related Subsidiaries

Definitions

For definition of "intelligence community" as used in this section, see section 7002 of Pub. L. 118–31, set out as a note under section 3003 of this title.