Subject: Re: Intelligence Reform Act
From: "Cassandra Butts" <[email-masked]>
To: "Chris Lu" <[email-masked]>, "John Podesta" <[email-masked]>, "Froman, Michael B" <[email-masked]>, Federico Peña <[email-masked]>
Date: Thu, 21 Aug 2008 22:41:24 -0400

The security clearance issue also came up in conversations that Christine
and I had with Jim Hamilton and Leslie Kiernan regarding the vetting
process. Jim recommended that we receive at least secret-level clearance as
we move forward in vetting process.

On Thu, Aug 21, 2008 at 8:00 PM, Chris Lu <[email-masked]> wrote:

>  When John and Melody met with Josh Bolten recently, there was a
> discussion about the new requirements to facilitate presidential transitions
> that were included in the Intelligence Reform Act of 2004.  Below (and
> attached) is a memo that one of our research assistants did on the subject:
>
>
>
> TO:                  Chris Lu
>
> FROM:            Blake Roberts
>
> RE:                  Intelligence Reform Act of 2004 — Impact on Transition
>
>
>
>
>
> *Question presented*
>
> How does the Intelligence Reform Act of 2004 affect Transition?
>
>
>
> *Short Answer*
>
> The Intelligence Reform Act of 2004 encourages rapid placement of national
> security personnel in both Transition and the new Administration and
> requires immediate transfer of information from current Executive Branch
> officials to the President-Elect.
>
>
>
> The Act:
>
>    - Allows each major party candidate, before the election, to request
>    security clearances for prospective transition team members who would need
>    access to classified information to carry out transition responsibilities;
>    and requires the investigating agency to process the requests, to the
>    fullest extent practicable, by the day after the election.
>    - Encourages the President-Elect to request security clearances for
>    high level national security candidates as soon as possible after the
>    election; and requires the investigating agency to process the requests as
>    soon as possible before the inauguration.
>    - Encourages the President-Elect to submit high level national security
>    nominees to the Senate before inauguration; and encourages the Senate to
>    confirm or reject the nominees within 30 days.
>    - Requires executive officials to prepare a detailed written summary of
>    current national security issues and deliver it to the President-Elect as
>    soon as possible after the election.
>
>
>
> *Discussion*
>
>
> Section 7601 of the Intelligence Reform Act of 2004 "addresses the 9/11
> Commission's recommendation to improve the transition between
> administrations."  Cong. Rec. S10008 (Sep. 30, 2004) (Sen. McCain).  During
> the course of their investigation, Commissioners found that "the time of
> transition is a time of great vulnerability for our country" and that
> "[n]ational security policy making is too important to be disrupted by
> transition between administrations or delayed by an overburdened system."
> Testimony of Commissioner Fred Fielding before the Senate Oversight of
> Government Management Subcommittee (Sep. 14, 2004).  The Commission
> recommended several reforms so "transitions can work more effectively and
> allow new officials to assume their responsibilities as soon as possible."
> *The 9-11 Commission Report* 422-23, *quoted in* Cong. Rec. S10008 (Sep.
> 30, 2004) (Sen. McCain).  To implement these recommendations, Senators
> McCain and Lieberman introduced the text of section 7601 as an amendment; it
> passed on a voice vote.  Cong. Rec. S10007 – 9 (Sep. 30, 2004).
>
>
>
> The Act affects four aspects of Transition —
>
> (1)   Security clearances for prospective transition team members;
>
> (2)   Security clearances for candidates for national security positions
> in the Administration;
>
> (3)   Senate consideration of candidates for high level national security
> positions.
>
> (4)   Transmission of national security information from officials to the
> President-Elect;
>
> *See* § 7601, Intelligence Reform Act of 2004, Pub. L. 108-458, 118 Stat.
> 3857 (Dec. 17, 2004).
>
>
>
> 1.      *Security Clearances for Transition Team Members*
>
> The statute provides:
>
> Each major party candidate for President may submit, before the date of the
> general election, requests for security clearances for prospective
> transition team members who will have a need for access to classified
> information to carry out their responsibilities as members of the
> President-elect's transition team.
>
> . . . Necessary background investigations and eligibility determinations to
> permit appropriate prospective transition team members to have access to
> classified information shall be completed, to the fullest extent
> practicable, by the day after the date of the general election.
>
> Section 7601(b) (codified at 50 U.S.C. § 435b note).
>
>
>
> This provision was recommended by the 9-11 Commission.  *Report* at 422.
>
>
>
> The agency implementing this statute may require us to wait until Senator
> Obama accepts the Democratic nomination to submit requests under this
> provision.  The term "major party candidate for President" could be read to
> only include persons who have been nominated by their party (who were
> previously candidates for the party nomination).
>
>
>
> The statute does not define "prospective transition team members" or "who
> will have a need for access," apparently leaving that determination to the
> candidate.  This may allow us to submit requests for a range of personnel
> whose transition work at least partially intersects with national security.
>
>
>
> 2.      *Security Clearances for Administration Candidates*
>
> The Act provides:
>
> (1) The President-elect should submit to the Federal Bureau of
> Investigation or other appropriate agency . . . the names of candidates for
> high level national security positions through the level of undersecretary
> of cabinet departments as soon as possible after the date of the general
> election[] . . .
>
> (2) The responsible agency or agencies shall undertake and complete as
> expeditiously as possible the background investigations necessary to provide
> appropriate security clearances to the individuals . . . before the date of
> the inauguration . . . .
>
> Section 7601(a) (codified at 3 U.S.C. § 102 note).
>
>
>
> This provision was recommended by the 9-11 Commission.  *Report* at 422.
> Senator McCain advocated for this provision because having "Defense
> Department, as well as other national-security-related positions, literally
> vacant for months and months and months . . . is really not an acceptable
> situation."  Cong. Rec. S10009 (Sep. 30, 2004).
>
>
>
> 3.      *Senate Confirmation of Administration Nominees*
>
> The Act also contains a Sense of the Senate addressing the confirmation
> process:
>
> (1) [T]he President-elect should submit the nominations of candidates for
> high-level national security positions, through the level of undersecretary
> of cabinet departments, to the Senate by the . . . inauguration . . . and
>
> (2) for all such national security nominees received by the date of
> inauguration, the Senate committees to which these nominations are referred
> should, to the fullest extent possible, complete their consideration of
> these nominations, and, if such nominations are reported by the committees,
> the full Senate should vote to confirm or reject these nominations, within
> 30 days of their submission.
>
> Section 7601(b).
>
>
>
> Instead of this provision, the 9-11 Commission recommended that the Senate
> "adopt special rules requiring hearings and votes to confirm or reject
> national security nominees within 30 days of their submission."  *Report*at 422.  While the Sense of the Senate statement in the Act is not binding,
> it may remind participants in the confirmation process of the risks
> associated with unnecessary delay.  It could also be a powerful talking
> point.
>
>
>
> 4.      *Transmission of Information*
>
> The Act provides that:
>
> Activities . . . shall include the preparation of a detailed classified,
> compartmented summary by the relevant outgoing executive branch officials of
> specific operational threats to national security; major military or covert
> operations; and pending decisions on possible uses of military force. This
> summary shall be provided to the President-elect as soon as possible after
> the date of the general election[].**
>
> Section 7601(a) (codified at 3 U.S.C. § 102 note).
>
>
>
> This provision was recommended by the 9-11 Commission, *report* at 422,
> after it found that "the [Clinton-Bush] transition process didn't serve well
> in the briefing and handing over of important national security decisions
> from one administration to another."  *Fielding Testimony* (Sep. 14,
> 2004).
>
>
>
> *Conclusion*
>
> * *
>
> The Intelligence Reform Act of 2004 encourages rapid placement of national
> security personnel in both Transition and the new Administration and
> requires immediate transfer of information from current Executive Branch
> officials to the President-Elect.  The passages providing for early
> investigation of Transition and Administration personnel do not rigidly
> define who is eligible for this treatment.
>
>
>
>
>