50 U.S.C. § 3381 — Coordination of counterintelligence ac-

Page 869 TITLE 50—WAR AND NATIONAL DEFENSE § 3381 agreement, order, or other instrumentality or means entered into by an individual that could be interpreted as a legal constraint on the individual making an authorized disclo- sure. (6) The term ‘‘Office’’ means the All-domain Anomaly Resolution Office established pursu- ant to section 3373(a) of this title. (7) The term ‘‘personnel action’’ has the meaning given such term in section 3234(a) of this title. (8) The term ‘‘unidentified anomalous phe- nomena’’ has the meaning given such term in section 3373(n) of this title. (Pub. L. 117–263, div. A, title XVI, § 1673, Dec. 23, 2022, 136 Stat. 2959.) Editorial Notes REFERENCES IN TEXT Executive Order 13526, referred to in subsec. (b)(1)(B), is Ex. Ord. No. 13526, Dec. 29, 2009, 75 F.R. 707, 1013, which is set out as a note under section 3161 of this title. The Atomic Energy Act of 1954, referred to in subsec. (b)(1)(B), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919. Chapter 18 of the Act is classified generally to subchapter XVII (§ 2271 et seq.) of chapter 23 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables. CODIFICATION Section is comprised of section 1673 of Pub. L. 117–263. Subsec. (c) of section 1673 of Pub. L. 117–263 amended section 3373 of this title. Statutory Notes and Related Subsidiaries DEFINITIONS For definition of ‘‘congressional defense committees’’ as the Committees on Armed Services and Appropria- tions of the Senate and the House of Representatives, see section 101 of Title 10, Armed Forces, as made appli- cable by section 3 of of Pub. L. 117–263, which is listed in a table under section 101 of Title 10. SUBCHAPTER V—MANAGEMENT OF COUNTERINTELLIGENCE ACTIVITIES § 3381. Coordination of counterintelligence ac- tivities (a) Establishment of Counterintelligence Policy Board There is established within the executive branch of Government a National Counterintel- ligence Policy Board (in this section referred to as the ‘‘Board’’). The Board shall report to the President through the National Security Coun- cil. (b) Chairperson The Director of the National Counterintel- ligence and Security Center appointed under section 902 of the Counterintelligence Enhance- ment Act of 2002 (50 U.S.C. 3382) shall serve as the chairperson of the Board. (c) Membership The membership of the National Counterintel- ligence Policy Board shall consist of the fol- lowing: (1) The Director of the National Counter- intelligence and Security Center. (2) Senior personnel of departments and ele- ments of the United States Government, ap- pointed by the head of the department or ele- ment 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. (C) The Department of State. (D) The Department of Energy. (E) The Central Intelligence Agency. (F) Any other department, agency, or ele- ment of the United States Government spec- ified 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, re- solving conflicts that arise between ele- ments 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 Strat- egy 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, re- gardless 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 sub- paragraph (A), the Federal Bureau of Inves- tigation is consulted with respect to all subse- quent 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 pur- poses of such investigative activities. (2) Except as provided in paragraph (5), the Di- rector of the Federal Bureau of Investigation Page 870 TITLE 50—WAR AND NATIONAL DEFENSE § 3381 shall ensure that espionage information ob- tained by the Federal Bureau of Investigation pertaining to the personnel, operations, or infor- mation of departments or agencies of the execu- tive 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 under- taken by the Federal Bureau of Investigation which involve the personnel, operations, or in- formation of such department or agency. (3)(A) The Director of the Federal Bureau of Investigation shall submit to the head of the de- partment or agency concerned a written assess- ment of the potential impact of the actions of the department or agency on a counterintel- ligence investigation. (B) The head of the department or agency con- cerned shall— (i) use an assessment under subparagraph (A) as an aid in determining whether, and under what circumstances, the subject of an inves- tigation under paragraph (1) should be left in place for investigative purposes; and (ii) notify in writing the Director of the Fed- eral Bureau of Investigation of such deter- mination. (C) The Director of the Federal Bureau of In- vestigation and the head of the department or agency concerned shall continue to consult, as appropriate, to review the status of an inves- tigation covered by this paragraph, and to reas- sess, 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 ex- ecutive branch, including the head of the depart- ment or agency concerned, of the commence- ment 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 other- wise take any action that is likely to alert an employee covered by a notice under subpara- graph (A) of an investigation described in that subparagraph without prior coordination and consultation with the Federal Bureau of Inves- tigation. (5) Where essential to meet extraordinary cir- cumstances affecting vital national security in- terests 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 Investiga- tion. 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 consider- ations 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 in- vestigations of persons subject to the Uniform Code of Military Justice, nor to impose addi- tional reporting requirements upon the Depart- ment of Defense with respect to such investiga- tions 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, re- ferred to in subsec. (d)(1)(B), is title IX of Pub. L. 107–306, Nov. 27, 2002, 116 Stat. 2432. For complete classi- fication 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 ref- erenced in amendment notes below reflect the classi- fication of such sections prior to their editorial reclas- sification. 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 Se- curity Center appointed under section 902 of the Coun- terintelligence Enhancement Act of 2002 (50 U.S.C. 3382)’’ for ‘‘National Counterintelligence Executive under section 902 of the Counterintelligence Enhance- ment Act of 2002’’. Subsec. (c)(1). Pub. L. 115–31, § 401(f)(2), substituted ‘‘Director of the National Counterintelligence and Se- curity Center.’’ for ‘‘National Counterintelligence Ex- ecutive.’’ Subsec. (d)(1)(B)(ii). Pub. L. 115–31, § 401(f)(3), sub- stituted ‘‘Director of the National Counterintelligence and Security Center’’ for ‘‘National Counterintel- ligence 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 ‘‘Direc- tor 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 Page 871 TITLE 50—WAR AND NATIONAL DEFENSE § 3382 (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 congres- sional 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 Direc- tor shall, in accordance with applicable security proce- dures, 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) dur- ing the previous calendar year. ‘‘(C) The Director of the Federal Bureau of Investiga- tion 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 ap- proval of the President to govern the conduct of counterintelligence activities; and ‘‘(2) resolving conflicts, as directed by the Presi- dent, which may arise between elements of the Gov- ernment 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 Inves- tigation shall, in consultation with the Director of Cen- tral Intelligence and the Secretary of Defense, report annually, beginning on February 1, 1995, and continuing each year thereafter, to the Select Committee on Intel- ligence of the Senate and to the Permanent Select Committee on Intelligence of the House of Representa- tives and, in accordance with applicable security proce- dures, the Committees on the Judiciary of the House of Representatives and the Senate with respect to compli- ance 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), sub- stituted ‘‘paragraph (5)’’ for ‘‘paragraph (3)’’. Subsec. (c)(2). Pub. L. 106–567, § 605(a)(1), (b), sub- stituted ‘‘paragraph (5)’’ for ‘‘paragraph (3)’’ and in- serted ‘‘in a timely manner’’ after ‘‘through appro- priate 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), redesig- nated par. (3) as (5) and substituted ‘‘paragraph (1), (2), or (3)’’ for ‘‘paragraph (1) or (2)’’. Former par. (5) redes- ignated (7). Subsec. (c)(6) to (8). Pub. L. 106–567, § 605(a)(2), redes- ignated 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 Memo- randum 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 an- nual reports to Congress by the Director of Central In- telligence and the Director of the Federal Bureau of In- vestigation on intelligence activities of the People’s Republic of China directed against or affecting the in- terests 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 Counterintel- ligence and Security Center (a) Establishment There shall be a Director of the National Counterintelligence and Security Center (re- ferred 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 Di- rector 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 Counter- intelligence and Security Center established under section 3383 of this title. (4) To participate as an observer on such boards, committees, and entities of the execu- tive branch as the Director of National Intel- ligence considers appropriate for the discharge of the mission and functions of the Director and the National Counterintelligence and Se- curity 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 gen- erally. Prior to amendment, section related to the Na- tional Counterintelligence Executive.