SUBCHAPTER II—MISCELLANEOUS DEFENSE AGENCY MATTERS
201.
Certain intelligence officials: consultation and concurrence regarding appointments; evaluation of performance.
204.
Small Business Ombudsman for defense audit agencies.
1
205.
Missile Defense Agency.
Editorial Notes
Amendments
2017—Pub. L. 115–91, div. A, title XVI, §1676(c)(2), Dec. 12, 2017, 131 Stat. 1773, added item 205.
2016—Pub. L. 114–328, div. A, title V, §502(d)(2), Dec. 23, 2016, 130 Stat. 2102, which directed amendment of the "table of sections at the beginning of chapter 8" of this title by striking item 203, was executed by striking item 203 "Director of Missile Defense Agency" in the analysis preceding subchapter II of chapter 8 of this title to reflect the probable intent of Congress.
2013—Pub. L. 112–239, div. A, title XVI, §1612(b), Jan. 2, 2013, 126 Stat. 2065, added item 204.
2002—Pub. L. 107–314, div. A, title II, §225(b)(1)(B)(ii), Dec. 2, 2002, 116 Stat. 2486, substituted "Missile Defense Agency" for "Ballistic Missile Defense Organization" in item 203.
1997—Pub. L. 105–107, title V, §503(d)(1), Nov. 20, 1997, 111 Stat. 2262, struck out item 202 "Unauthorized use of Defense Intelligence Agency name, initials, or seal".
Pub. L. 105–85, div. A, title II, §235(b), Nov. 18, 1997, 111 Stat. 1665, added item 203.
1996—Pub. L. 104–201, div. A, title XI, §1103(b), Sept. 23, 1996, 110 Stat. 2677, substituted "Certain intelligence officials: consultation and concurrence regarding appointments; evaluation of performance" for "Consultation regarding appointment of certain intelligence officials" in item 201.
1991—Pub. L. 102–190, div. A, title IX, §922(b), Dec. 5, 1991, 105 Stat. 1453, added item 201 and redesignated former item 201 as 202.
1986—Pub. L. 99–433, title III, §301(a)(2), Oct. 1, 1986, 100 Stat. 1022, added subchapter heading and analysis of sections for subchapter II.
§201. Certain intelligence officials: consultation and concurrence regarding appointments; evaluation of performance
(a) Consultation Regarding Appointment.—Before submitting a recommendation to the President regarding the appointment of an individual to the position of Director of the Defense Intelligence Agency, the Secretary of Defense shall consult with the Director of National Intelligence regarding the recommendation.
(b) Concurrence in Appointment.—(1) In the event of a vacancy in a position referred to in paragraph (2), before appointing an individual to fill the vacancy or recommending to the President an individual to be nominated to fill the vacancy, the Secretary of Defense shall obtain the concurrence of the Director of National Intelligence as provided in section 106(b) of the National Security Act of 1947 (50 U.S.C. 3041(b)).
(2) Paragraph (1) applies to the following positions:
(A) The Director of the National Security Agency.
(B) The Director of the National Reconnaissance Office.
(C) The Director of the National Geospatial-Intelligence Agency.
(c) Performance Evaluations.—(1) The Director of National Intelligence shall provide annually to the Secretary of Defense, for the Secretary's consideration, an evaluation of the performance of the individuals holding the positions referred to in paragraph (2) in fulfilling their respective responsibilities with regard to the National Intelligence Program.
(2) The positions referred to in paragraph (1) are the following:
(A) The Director of the National Security Agency.
(B) The Director of the National Reconnaissance Office.
(C) The Director of the National Geospatial-Intelligence Agency.
(Added Pub. L. 102–190, div. A, title IX, §922(a)(2), Dec. 5, 1991, 105 Stat. 1453; amended Pub. L. 104–201, div. A, title XI, §1103(a), Sept. 23, 1996, 110 Stat. 2676; Pub. L. 108–136, div. A, title IX, §921(d)(4), Nov. 24, 2003, 117 Stat. 1569; Pub. L. 110–181, div. A, title IX, §931(a)(4), (5), (c)(2), Jan. 28, 2008, 122 Stat. 285; Pub. L. 110–417, [div. A], title IX, §932(a)(3)–(5), Oct. 14, 2008, 122 Stat. 4576; Pub. L. 111–84, div. A, title X, §1073(c)(10), Oct. 28, 2009, 123 Stat. 2475; Pub. L. 113–291, div. A, title X, §1071(c)(4), Dec. 19, 2014, 128 Stat. 3508.)
Editorial Notes
Prior Provisions
A prior section 201 was renumbered section 202 of this title and subsequently repealed.
Amendments
2014—Subsec. (b)(1). Pub. L. 113–291 substituted "(50 U.S.C. 3041(b))" for "(50 U.S.C. 403–6(b))".
2009—Subsecs. (a), (b)(1), (c)(1). Pub. L. 111–84 repealed Pub. L. 110–417, §932(a)(3)–(5). See 2008 Amendment notes below.
2008—Subsec. (a). Pub. L. 110–181, §931(a)(4), and Pub. L. 110–417, §932(a)(3), amended subsec. (a) identically, substituting "Director of National Intelligence" for "Director of Central Intelligence". Pub. L. 110–417, §932(a)(3), was repealed by Pub. L. 111–84.
Subsec. (b)(1). Pub. L. 110–417, §932(a)(4), which directed substitution of "Director of National Intelligence" for "Director of Central Intelligence", could not be executed because of the intervening amendment by Pub. L. 110–181, §931(c)(2)(A), and was repealed by Pub. L. 111–84.
Pub. L. 110–181, §931(c)(2)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "Before submitting a recommendation to the President regarding the appointment of an individual to a position referred to in paragraph (2), the Secretary of Defense shall seek the concurrence of the Director of Central Intelligence in the recommendation. If the Director does not concur in the recommendation, the Secretary may make the recommendation to the President without the Director's concurrence, but shall include in the recommendation a statement that the Director does not concur in the recommendation."
Subsec. (c)(1). Pub. L. 110–181, §931(c)(2)(B), substituted "National Intelligence Program" for "National Foreign Intelligence Program".
Pub. L. 110–181, §931(a)(5), and Pub. L. 110–417, §932(a)(5), amended par. (1) identically, substituting "Director of National Intelligence" for "Director of Central Intelligence". Pub. L. 110–417, §932(a)(5), was repealed by Pub. L. 111–84.
2003—Subsecs. (b)(2)(C), (c)(2)(C). Pub. L. 108–136 substituted "National Geospatial-Intelligence Agency" for "National Imagery and Mapping Agency".
1996—Pub. L. 104–201 substituted "Certain intelligence officials: consultation and concurrence regarding appointments; evaluation of performance" for "Consultation regarding appointment of certain intelligence officials" in section catchline and amended text generally. Prior to amendment, text read as follows: "Before submitting a recommendation to the President regarding the appointment of an individual to the position of Director of the Defense Intelligence Agency or Director of the National Security Agency, the Secretary of Defense shall consult with the Director of Central Intelligence regarding the recommendation."
Statutory Notes and Related Subsidiaries
Effective Date of 2009 Amendment
Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(10) is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of this title.
Defense Intelligence Agency
Pub. L. 102–190, div. A, title IX, §921, Dec. 5, 1991, 105 Stat. 1452, as amended by Pub. L. 103–337, div. A, title X, §1070(d)(1), Oct. 5, 1994, 108 Stat. 2858, provided that, during the period beginning on Dec. 5, 1991, and ending on Jan. 1, 1993, the Assistant Secretary of Defense referred to in section 138(b)(3) of this title could be assigned supervision of the Defense Intelligence Agency other than day-to-day operational control over the Agency, set forth the responsibilities of the Director of the Defense Intelligence Agency during the period beginning on Dec. 5, 1991, and ending on Jan. 1, 1993, and directed the Secretary of the Army and the Director of the Defense Intelligence Agency to take all required actions in order to transfer the Armed Forces Medical Intelligence Center and the Missile and Space Intelligence Center from the Department of the Army to the control of the Defense Intelligence Agency not later than Jan. 1, 1992.
Joint Intelligence Center
Pub. L. 102–190, div. A, title IX, §923, Dec. 5, 1991, 105 Stat. 1453, provided that:
"(a) Requirement for Center.—The Secretary of Defense shall direct the consolidation of existing single-service current intelligence centers that are located within the District of Columbia or its vicinity into a joint intelligence center that is responsible for preparing current intelligence assessments (including indications and warning). The joint intelligence center shall be located within the District of Columbia or its vicinity. As appropriate for the support of military operations, the joint intelligence center shall provide for and manage the collection and analysis of intelligence.
"(b) Management.—The center shall be managed by the Defense Intelligence Agency in its capacity as the intelligence staff activity of the Chairman of the Joint Chiefs of Staff.
"(c) Responsiveness to Command Authorities.—The Secretary shall ensure that the center is fully responsive to the intelligence needs of the Secretary, the Chairman of the Joint Chiefs of Staff, and the commanders of the combatant commands."
Section, added Pub. L. 97–269, title V, §501(a), Sept. 27, 1982, 96 Stat. 1145, §191; amended Pub. L. 98–525, title XIV, §1405(6), Oct. 19, 1984, 98 Stat. 2622; renumbered §201, Pub. L. 99–433, title III, §301(a)(1), Oct. 1, 1986, 100 Stat. 1019; renumbered §202, Pub. L. 102–190, div. A, title IX, §922(a)(1), Dec. 5, 1991, 105 Stat. 1453; Pub. L. 105–107, title V, §503(b), Nov. 20, 1997, 111 Stat. 2262, related to unauthorized use of Defense Intelligence Agency name, initials, or seal, after amendment by Pub. L. 105–107, which transferred subsec. (b) to end of section 425.
Section, added Pub. L. 105–85, div. A, title II, §235(a), Nov. 18, 1997, 111 Stat. 1665; amended Pub. L. 107–314, div. A, title II, §225(b)(1)(A), (B)(i), Dec. 2, 2002, 116 Stat. 2486, related to appointment of Director of Missile Defense Agency.
[§204. Renumbered §3848]
§205. Missile Defense Agency
(a) Appointment of Director.—The Director of the Missile Defense Agency shall be a general or flag officer appointed for a six-year term.
(b) Deputy Director.—(1) There is a Deputy Director of the Missile Defense Agency, who shall be appointed by the Secretary of Defense from among the general officers on active duty in the Army, Air Force, Marine Corps, or Space Force, or from among the flag officers on active duty in the Navy. In selecting an individual to serve as the Deputy Director, the Secretary of Defense shall select an individual who serves in a different armed force than the armed force in which the Director serves.
(2) The Deputy Director shall be appointed for a term of not fewer than two, and not more than four years.
(3) The Deputy Director shall be under the authority, direction, and control of the Director of the Missile Defense Agency.
(4) The Deputy Director shall—
(A) carry out such responsibilities as may be assigned by the Director; and
(B) serve as acting director during periods of absence by the Director, or at such times as the office of the Director is vacant.
(c) Notification of Changes to Non-standard Acquisition and Requirements Processes and Responsibilities.—(1) The Secretary of Defense may not make any changes to the missile defense non-standard acquisition and requirements processes and responsibilities unless, with respect to those proposed changes—
(A) the Secretary, without delegation, has taken each of the actions specified in paragraph (2); and
(B) a period of 120 days has elapsed following the date on which the Secretary submits the report under subparagraph (C) of such paragraph.
(2) If the Secretary proposes to make changes to the missile defense non-standard acquisition and requirements processes and responsibilities, the Secretary shall—
(A) consult with the Under Secretary of Defense for Research and Engineering, the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Policy, the Secretaries of the military departments, the Chairman of the Joint Chiefs of Staff, the Commander of the United States Strategic Command, the Commander of the United States Northern Command, and the Director of the Missile Defense Agency, regarding the changes;
(B) certify to the congressional defense committees that the Secretary has coordinated the changes with, and received the views of, the individuals referred to in subparagraph (A);
(C) submit to the congressional defense committees a report that contains—
(i) a description of the changes, the rationale for the changes, and the views of the individuals referred to in subparagraph (A) with respect to the changes;
(ii) a certification that the changes will not impair the missile defense capabilities of the United States nor degrade the unique special acquisition authorities of the Missile Defense Agency; and
(iii) with respect to any such changes to Department of Defense Directive 5134.09, or successor directive issued in accordance with this subsection, a final draft of the proposed modified directive, both in an electronic format and in a hard copy format; and
(D) with respect to any such changes to Department of Defense Directive 5134.09, or successor directive issued in accordance with this subsection, provide to such committees a briefing on the proposed modified directive described in subparagraph (C)(iii).
(3) In this subsection, the term "non-standard acquisition and requirements processes and responsibilities" means the processes and responsibilities described in—
(A) the memorandum of the Secretary of Defense titled "Missile Defense Program Direction" signed on January 2, 2002, as in effect on the date of the enactment of this subsection or as modified in accordance with this subsection, or any successor memorandum issued in accordance with this subsection;
(B) Department of Defense Directive 5134.09, as in effect on the date of the enactment of this subsection (without regard to any modifications described in Directive-type Memorandum 20–002 of the Deputy Secretary of Defense, or any amendments or extensions thereto made before the date of such enactment), or as modified in accordance with this subsection, or any successor directive issued in accordance with this subsection; and
(C) United States Strategic Command Instruction 538–3 titled "MD Warfighter Involvement Process", as in effect on the date of the enactment of this subsection or as modified in accordance with this subsection, or any successor instruction issued in accordance with this subsection.
(Added Pub. L. 115–91, div. A, title XVI, §1676(c)(1), Dec. 12, 2017, 131 Stat. 1773; amended Pub. L. 116–283, div. A, title XVI, §1641(a), Jan. 1, 2021, 134 Stat. 4061; Pub. L. 117–81, div. A, title XVI, §1661(a), Dec. 27, 2021, 135 Stat. 2101; Pub. L. 118–31, div. A, title XVI, §1661, Dec. 22, 2023, 137 Stat. 602.)
Editorial Notes
References in Text
The date of the enactment of this subsection, referred to in subsec. (c)(3), is the date of enactment of Pub. L. 117–81, which was approved Dec. 27, 2021.
Amendments
2023—Subsec. (a). Pub. L. 118–31, §1661(1), inserted "a general or flag officer" after "shall be".
Subsecs. (b), (c). Pub. L. 118–31, §1661(2), (3), added subsec. (b) and redesignated former subsec. (b) as (c).
2021—Pub. L. 117–81 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).
Pub. L. 116–283 amended section generally. Prior to amendment, text read as follows:
"(a) Term of Director.—The Director of the Missile Defense Agency shall be appointed for a six-year term.
"(b) Reporting.—The Missile Defense Agency shall be under the authority, direction, and control of the Under Secretary of Defense for Research and Engineering."
Statutory Notes and Related Subsidiaries
Rescission of Memorandum on Missile Defense Governance
Pub. L. 118–31, div. A, title XVI, §1667, Dec. 22, 2023, 137 Stat. 607, provided that: "Not later than May 31, 2024, the Secretary of Defense shall—
"(1) rescind Directive-type Memorandum 20-002 relating to "Missile Defense System Policies and Governance"; and
"(2) in accordance with section 205(b) of title 10, United States Code, replace such memorandum with governance documents, policies, and procedures, that balance—
"(A) providing the Missile Defense Agency with greater flexibility and agility, particularly with regards to milestone a [probably should be "Milestone A"] (or equivalent) acquisition decisions to rapidly meet warfighter needs; and
"(B) the need for continued oversight to ensure integration into joint-force air and missile defense capabilities."
Directed Energy Programs for Ballistic and Hypersonic Missile Defense
Pub. L. 117–81, div. A, title XVI, §1664, Dec. 27, 2021, 135 Stat. 2104, provided that:
"(a) Authority of the Missile Defense Agency.—The Secretary of Defense shall delegate to the Director of the Missile Defense Agency the authority to budget for, direct, and manage directed energy programs applicable for ballistic and hypersonic missile defense missions, in coordination with other directed energy efforts of the Department of Defense.
"(b) Prioritization.—In budgeting for and directing directed energy programs applicable for ballistic and hypersonic defensive missions pursuant to subsection (a), the Director of the Missile Defense Agency shall—
"(1) prioritize the early research and development of technologies; and
"(2) address the transition of such technologies to industry to support future operationally relevant capabilities."
Application
Pub. L. 115–91, div. A, title XVI, §1676(c)(3), Dec. 12, 2017, 131 Stat. 1773, as amended by Pub. L. 117–81, div. A, title XVI, §1671(d)(1), Dec. 27, 2021, 135 Stat. 2113, provided that:
"(A) Terms.—Subsection (a) of section 205 of title 10, United States Code, as added by paragraph (1), shall apply the day following the date on which the present incumbent in the office of the Director of the Missile Defense Agency, as of the date of the enactment of this Act [Dec. 12, 2017], ceases to serve as such.
"(B) Reporting.—[Former] Subsection (b) of such section 205 [subsec. (b) omitted by Pub. L. 116–283 and new subsec. (b) added by Pub. L. 117–81] shall apply beginning on February 1, 2018. In carrying out such subsection, the Missile Defense Agency shall be under the authority, direction, and control of the Under Secretary of Defense for Research and Engineering in the same manner as the Missile Defense Agency was under the authority, direction, and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to Department of Defense Directive 5134.09. Any reference in such Instruction to the Under Secretary of Defense for Acquisition, Technology, and Logistics shall be deemed to be a reference to the Under Secretary of Defense for Research and Engineering, including with respect to the Under Secretary serving as the chair of the Missile Defense Executive Board."