Calendar No. 260
110th Congress Report
SENATE
1st Session 110-125
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NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008
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June 29, 2007.--Ordered to be printed
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Mr. Rockefeller, from the Select Committee on Intelligence, submitted
the following
R E P O R T
[To accompany S. 1547]
together with
ADDITIONAL VIEWS
The Select Committee on Intelligence, to which was referred
the bill (S. 1547) to authorize appropriations for fiscal year
2008 for military activities of the Department of Defense, for
military construction, and for defense activities of the
Department of Energy, to prescribe military personnel strengths
for such fiscal year, and for other purposes, having considered
the same, reports favorably thereon with amendments and
recommends that the bill, as amended, do pass. The Committee is
also favorably reporting with proposed identical amendments,
but without a separate written report, a related referred bill
(S. 1548) which is described below.
On June 5, 2007, the Committee on Armed Services reported
S. 1547, the National Defense Authorization Act for Fiscal Year
2008, together with several companion measures each of which is
comprised of a division of S. 1547. The provisions of S. 1548,
the Department of Defense Authorization Act for Fiscal Year
2008, are identical to Division A of S. 1547.
On June 12, 2007, pursuant to section 3(b) of Senate
Resolution 400 of the 94th Congress, Chairman Rockefeller wrote
to the Majority Leader to request the sequential referral to
the Intelligence Committee of S. 1547 and S. 1548. The basis
for the request was that the bills contain matters that are
within the jurisdiction of the Intelligence Committee. As
prescribed by section 3(b)(4) of Senate Resolution 400,
``committees to which legislation is referred are not permitted
to make changes or alterations to the text of the referred bill
and its annexes, but may propose changes or alterations to the
same in the form of amendments.''
On June 13, 2007, the two bills were referred to this
Committee. In accordance with section 3(b)(1), the period of a
sequential referral begins when proposed legislation
``including annexes'' is referred. On June 19, 2007, the
Intelligence Committee received the classified annex to S.
1547.
Section 1023. Procedures for Combatant Status Review Tribunals
The Committee proposes two amendments to Section 1023(a) of
S. 1547 and S. 1548 (the two sections are identical). Section
1023(a) of each bill amends the Detainee Treatment Act of 2005
to establish requirements for procedures that govern Combatant
Status Review Tribunals (CSRTs). The purpose of the tribunals
is to determine the status of detainees being held by the
Department of Defense (DoD), including whether the detainees
are ``unlawful enemy combatants.''
Both of our Committee's amendments are designed to clarify
and underscore the protection given to classified information
during the proceedings of CSRTs, including the protection of
intelligence sources and methods, and are consistent with the
overall intention in that regard of the Committee on Armed
Services.
One of the procedures established by Section 1023(a)
concerns the reasonable opportunity of detainees to obtain
witnesses and other evidence. As reported by the Committee on
Armed Services, the procedures available to detainees in CSRTs
are to be ``similar to'' the procedures available in military
commission proceedings as found in section 949j of title 10,
United States Code. The first of our Section 1023(a) amendments
recommends that the reasonable opportunity afforded to a
detainee to obtain witnesses and other evidence should be
``consistent with'' and not merely ``similar to'' the military
commission procedures. This change makes clear that the
procedures governing a detainee's access to witnesses and other
evidence should be no less rigorous than those applicable to a
military commission, particularly where access to classified
information is concerned.
The Committee's second recommended change to Section
1023(a) relates to the detainee's ability to have access to a
summary of classified information during his CSRT proceeding.
The Committee recommends that the phrase ``an unclassified
summary'' be inserted in place of ``a summary.'' This insertion
is consistent with the language currently used in section
949j(c) of title 10. The Committee's intention is that, under
no circumstances, should Congress mandate that a detainee have
access to classified information. It is our understanding that
this is fully consistent with the intention of the Committee on
Armed Services.
Section 1063. Communications between the Intelligence Community and the
Committees on Armed Services
The Committee proposes that Section 1063 of S. 1547 and S.
1548 (the two sections are identical) be deleted.
Section 1063 is entitled ``Communications with the
Committees on Armed Services of the Senate and the House of
Representatives.'' Subsections (a) and (b) establish rules on
responses to requests by the Armed Services Committees to
elements of the Intelligence Community for kinds of documents
or other intelligence information. Subsection (c) prohibits
requirements for approval, comments, or review in the executive
branch of testimony, legislative recommendations, or comments
by Intelligence Community elements to the Armed Services
Committees.
We share with the Armed Services Committee the conviction
that it is critically important that all elements of the
Intelligence Community provide timely responses to requests for
documents that Congress needs to perform its responsibilities.
We also share the conviction that it is essential for testimony
on intelligence matters to be independent. Indeed, the
Intelligence Reform and Terrorism Prevention Act of 2004 makes
the precise point that the Director of National Intelligence is
responsible for ensuring that national intelligence provided to
the Senate and House and their committees should be ``timely,
objective, [and] independent of political considerations.''
Section 102A(a)(2) of the National Security Act of 1947, 50
U.S.C. 403-1(a)(2).
But if experience since enactment of the Intelligence
Reform Act demonstrates a need to supplement that requirement
with auxiliary procedures, those procedures should be
considered in a setting that evaluates the issues across the
board. The Senate has vested in the Intelligence Committee
jurisdiction over the Office of the Director of National
Intelligence. Legislation that alters the relationship between
the Director of National Intelligence and other parts of the
Executive Branch, or governs the relationship between the DNI
and congressional committees, should be considered
comprehensively and not, with all respect to our colleagues on
other committees, separately and perhaps differently by the
various committees of the Senate that may have an interest in
intelligence information.
In doing so, the Intelligence Committee must be and is
mindful, of course, of the requirement of section 3(d) of
Senate Resolution 400 that nothing in S. Res. 400 changes the
authority of any standing committee to obtain full and prompt
access to the product of the intelligence activities of any
department or agency relevant to a matter within the
jurisdiction of that committee. However, Congress should not
enact separate rules for its various committees outside the
Intelligence Committees, which is the precedent that Section
1063 would establish.
Section 1064. Repeal of Standards for Disqualification from Issuance of
Security Clearances by the Department of Defense.
The Committee proposes that Section 1064 of S. 1547 and S.
1548 (the two sections are identical) be deleted.
Section 1064 repeals section 986 of title 10, United States
Code. Under section 986, DoD may not grant or renew a security
clearance for covered individuals who meet criteria set forth
in the section. The covered individuals are officers or
employees of DoD, active duty or active status members of the
Army, Navy, Air Force or Marine Corps, and officers or
employees of DoD contractors. There are four grounds for
disqualification: (1) any past conviction of a crime in any
court of the United States and resulting incarceration of not
less than one year; (2) current mental incompetence, as
determined by a DoD approved mental health professional; (3)
currently being an unlawful user of, or being addicted to, a
controlled substance; and (4) any past discharge or dismissal
from the Armed Forces under dishonorable conditions.
The Committee understands DoD's desire to have more
flexibility to give clearances to otherwise qualified
individuals who are currently barred from receiving or renewing
their security clearances. Because of the extremely sensitive
nature of DoD's military and intelligence activities, however,
the Committee is concerned that a blanket repeal of section 986
could lead to unintended compromises or mishandling of
classified information. Further, the Committee believes that
the waiver authority that is currently provided in section 986
is sufficient to give DoD the flexibility and discretion it
needs in handling cases involving convictions or dishonorable
discharges. With respect to the two remaining categories, it is
the Committee's opinion that an individual who is currently
using illicit substances or is mentally incompetent is not
suited for access to classified information.
The Committee believes that the issue of security
clearances, including grounds for disqualification and waiver
procedures, should be examined carefully in close coordination
with DoD (and other appropriate offices in the Executive
Branch) and the Office of the Director of National
Intelligence.
Committee Action
On June 26, 2007, by voice vote the Committee agreed to
adopt the Chairman and Vice Chairman's mark for S. 1547 and S.
1548 which contained a recommendation that Section 1063 of each
be deleted.
On June 26, 2007, by voice vote the Committee agreed to an
amendment by Vice Chairman Bond to recommend an amendment to
Section 1023 of S. 1547 and S. 1548 on the opportunity of
detainees to obtain witnesses and other evidence in the
proceedings of Combatant Status Review Tribunals.
On June 26, 2007, by voice vote the Committee agreed to an
amendment by Vice Chairman Bond to recommend an amendment to
Section 1023 of S. 1547 and S. 1548 to provide that any summary
of classified evidence provided to a detainee in a Combatant
Status Review Tribunal proceeding shall be unclassified.
On June 26, 2007, by a vote of 10 ayes and 5 noes, the
Committee agreed to an amendment by Vice Chairman Bond to
strike Section 1064 of S. 1547 and S. 1548. The votes in person
or by proxy were as follows: Chairman Rockefeller--no; Senator
Feinstein--aye; Senator Wyden--no; Senator Bayh--no; Senator
Mikulski--no; Senator Feingold--no; Senator Nelson--aye;
Senator Whitehouse--aye; Vice Chairman Bond--aye; Senator
Warner--aye; Senator Hagel--aye; Senator Chambliss--aye;
Senator Hatch--aye; Senator Snowe--aye; Senator Burr--aye.
On June 26, 2007, by a vote of 5 ayes and 10 noes, the
Committee rejected an amendment by Vice Chairman Bond to
recommend that a provision be added to S. 1547 and S. 1548 that
the Under Secretary of Defense for Intelligence shall also
serve as the Director of Defense Intelligence in the Office of
the Director of National Intelligence. The votes in person or
by proxy were as follows: Chairman Rockefeller--no; Senator
Feinstein--no; Senator Wyden--no; Senator Bayh--no; Senator
Mikulski--no; Senator Feingold--no; Senator Nelson--no; Senator
Whitehouse--no; Vice Chairman Bond--aye; Senator Warner--no;
Senator Hagel--no; Senator Chambliss--aye; Senator Hatch--aye;
Senator Snowe--aye; Senator Burr--aye.
On June 26, 2007, a quorum for reporting being present, by
a vote of 15 ayes and 0 noes the Committee voted to report S.
1547 and S. 1548, as proposed to be amended, favorably. The
votes in person or by proxy were as follows: Chairman
Rockefeller--aye; Senator Feinstein--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--aye; Senator Feingold--
aye; Senator Nelson--aye; Senator Whitehouse--aye; Vice
Chairman Bond--aye; Senator Warner--aye; Senator Hagel--aye;
Senator Chambliss--aye; Senator Hatch--aye; Senator Snowe--aye;
Senator Burr--aye.
Estimate of Costs
On June 27, 2007, the Committee transmitted S. 1547 and S.
1548 to the Congressional Budget Office and requested it to
conduct an estimate of the costs, if any, resulting from the
proposed amendments.
Evaluation of Regulatory Impact
In accordance with paragraph 11(b) of the Standing Rules of
the Senate, the Committee finds that no substantial regulatory
impact will be incurred by implementing the proposed amendment.
Changes in Existing Laws
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF SENATORS ROCKEFELLER, WYDEN, AND FEINGOLD
At the request of the Department of Defense, the Committee
on Armed Services included a provision in the National Defense
Authorization Act for Fiscal Year 2008 (S. 1547 and also in its
companion measure S. 1548) that would repeal Section 986 of
Title 10 of the United States Code, a title uniquely within the
jurisdiction of that committee. The provision, Section 1064 of
S. 1547 and S. 1548, concerns security clearances for DoD
personnel. On the sequential referral to us of these bills, our
committee has voted to request the Senate to reinstate Section
986, thereby overriding the joint judgment of DoD and the Armed
Services Committee on this matter. Having voted at our markup
to defer to the views of DoD and the Armed Services Committee,
we offer these few words of explanation.
Section 986 of Title 10 applies to all officers or
employees of DoD, all members of the Armed Forces on active
duty or in an active status, and all officers or employees of
DoD contractors. It does not apply to officers, employees, or
contractors of the CIA or any other element of the Intelligence
Community outside of DoD, or to any of the other departments or
agencies of the government or their contractors.
For the large universe of civilian and military personnel
to which it applies, Section 986 bars the grant of security
clearances to anyone who at any time in the past had been
incarcerated for more than a year for a criminal conviction or
had been discharged dishonorably from the Armed Forces. It also
bars security clearances for anyone who is currently an
unlawful user of or is addicted to a controlled substance, or
is mentally incompetent as determined by a DoD approved mental
health professional.
Section 986 contains a waiver provision if there are
mitigating circumstances. The waiver may be exercised only in
accordance with standards and procedures prescribed under an
order or guidance issued by the President. Notwithstanding the
waiver provision, DoD has told the Armed Services Committees
that ``[t]hese DoD-specific criteria unduly limit the ability
of the Department to manage its security clearance program and
may create unwarranted hardships for individuals who have
rehabilitated themselves as productive and trustworthy
citizens.''
We have been advised that there is no comparable statute
applicable to any other department or agency of the government.
Throughout the government, the regular security clearance
procedures established by the President under Executive Order
12968 make clear that ``agencies may investigate and consider
any matter that relates to the determination of whether access
is clearly consistent with the interests of national
security.''
Moreover, following enactment of Section 986 in 2000 (and
its amendment in 2004), Congress, in title III of the
Intelligence Reform and Terrorism Prevention Act of 2004, has
sought to chart a new government-wide direction for security
clearances. An important feature of that title requires the
President to select a single unit in the executive branch that
is responsible for developing and implementing ``uniform and
consistent'' policies and procedures for security clearances.
One goal of that effort is to ensure reciprocal recognition of
access to classified information among U.S. agencies. A
security clearance statute, such as Section 986, that
establishes rules only applicable in one department, runs
counter to that overall congressional goal.
As all other members, we would be deeply concerned about
the grant of security clearances to persons who have been
imprisoned for more than a year or who are current drug users,
to take two of the categories in section 986. But we have heard
no reason to question the adequacy of the security clearance
process established under presidential order, nor to question
the joint assessment of DoD and the Armed Services Committee
that national security can be protected without this one DoD-
specific statute.
John D. Rockefeller IV.
Ron Wyden.
Russell D. Feingold.
ADDITIONAL VIEWS OF SENATORS BOND, CHAMBLISS, HATCH, SNOWE, AND BURR
The Select Committee on Intelligence renewed an important
precedent by requesting sequential referral of S. 1547, the
National Defense Authorization Act for Fiscal Year 2008, and S.
1548, the Department of Defense Authorization Act for Fiscal
year 2008. These bills warranted review by the Intelligence
Committee due to a number of provisions that are within the
jurisdiction of the Intelligence Committee and directly affect
the Intelligence Community.
The Committee acted expeditiously to report favorably on
these bills and proposed several significant alterations in the
form of amendments. These additional views will discuss an
amendment adopted by the Committee, which would prevent the
repeal of a statute designed to restrict certain individuals
within the Department of Defense (DoD) from receiving security
clearances.
Section 1064 of the DoD authorization bill repeals, in its
entirety, Section 986 of title 10, which bars certain
individuals from receiving security clearances from DoD.
Concerned about the negative impact of removing this bar, Vice
Chairman Bond offered an amendment to strike Section 1064,
thereby reinstating Section 986. While the Committee accepted
the proposed amendment by a vote of 10 to 5, we believe the
seriousness of the issues involved merits further comment.
Under Section 986, DoD may not grant or renew a security
clearance for an individual who meets any of the following
criteria: (1) has been convicted of a crime, with a sentence
and incarceration of more than one year; (2) is an unlawful
user of, or is addicted to a controlled substance; (3) is
mentally incompetent; or (4) has been dishonorably discharged
from the Armed Forces. We believe these prohibitions are
reasonable and narrowly tailored to address certain individuals
who do not appear to be suited to access classified
information.
Section 986 does allow a waiver to be granted, in a
meritorious case, where the prohibition is based on a
conviction or dishonorable discharge. This makes sense for
select cases where individuals have changed their ways and
become responsible citizens. There is, however, no waiver for
individuals who are currently using drugs or are mentally
incompetent. This also makes sense. We cannot imagine any
reasonable argument to justify giving such individuals access
to some of the Nation's most closely guarded secrets.
Proponents of Section 1064, including the Administration,
have argued that the procedure for obtaining a waiver is
``onerous'' and may discourage agencies or individuals from
pursuing a meritorious waiver. Section 986, however, does not
mandate any procedure for considering or granting a waiver.
Rather, this statute clearly states that the standards and
procedures are to be established by Executive order or other
Presidential guidance. Thus, to the extent that DoD believes
that the waiver process is too cumbersome or does not provide
sufficient flexibility, DoD should seek changes in the
implementing guidance issued by the Executive branch.
In recent years, there have been some noteworthy and
unfortunate leaks of sensitive intelligence programs. These
leaks have compromised classified information and likely led to
our enemies changing their tactics to thwart our collection
efforts. Because such leaks can cause irreparable harm to our
intelligence programs, reasonable measures such as Section 986
that protect classified information should be preserved.
Section 986 has significant implications for the
Intelligence Community as there are a number of Intelligence
Community components within DoD. Further, we believe that we
should give serious consideration to extending similar security
clearance restrictions to the rest of the Intelligence
Community. Rather than risk compromising our intelligence
sources and methods, we believe that this statute serves as a
good starting point for fully exploring further options in this
area.
Christopher S. Bond.
Saxby Chambliss.
Orrin G. Hatch.
Olympia J. Snowe.
Richard Burr.
ADDITIONAL VIEWS OF SENATORS BURR, BOND, CHAMBLISS, HATCH, AND SNOWE
The DoD Authorization Act for Fiscal Year 2008 is a very
important piece of legislation. Its importance is heightened
during our nation's ongoing struggle against terrorism and the
threats of extremist groups. Our Armed Services and
Intelligence Community are facing this threat head on. They
continue to perform admirably and deserve our full support.
Congress can provide that support by ensuring that our
defense and intelligence leaders work together in a coordinated
and synchronized manner. During the Committee's markup of the
DoD Authorization Act, Vice Chairman Bond offered an amendment
that would do just that. The amendment would have established a
role for the Under Secretary of Defense for Intelligence (USDI)
as Director of Defense Intelligence within the Office of the
Director of National Intelligence (ODNI). Much to our
disappointment, despite near unanimity that it was a good idea,
the Committee chose not to adopt this amendment.
The Secretary of Defense and Director of National
Intelligence through a memorandum of agreement have established
the role of USDI as the Director of Defense Intelligence within
the ODNI. But, relying solely on this document to confirm the
USDI's new, dual-hatted role makes coordination of defense and
intelligence leaders too dependent upon a cooperative
relationship between the principals in the Department of
Defense and the Intelligence Community.
There is wide recognition that this is an important
relationship that should be formalized. In a statement on May
24, 2007, the ODNI explained that the agreement was made
. . . in recognition of the crucial importance of
coordinated intelligence efforts to the national
security of the United States. The defense intelligence
components provide a full range of intelligence
products and analysis to a broad spectrum of consumers;
from military forces in the field to senior policy
makers across the federal government. These efforts are
intertwined with the national intelligence efforts
overseen by the DNI.
The USDI explains the significance of this dual-reporting
relationship well in his own words:
The creation of the Office of the Director of Defense
Intelligence is in recognition of the importance of
coordinated intelligence efforts to the national
security of the United States. This office will serve
to strengthen the relationship between the DNI and the
DoD. The objective here is to facilitate staff
interaction and promote synchronization.
We are concerned that a memorandum of agreement is not a
sufficient instrument to ensure this new and important
relationship will last. The memorandum stipulates that either
party can unilaterally terminate this relationship with 30 days
written notice. A future DNI who is not interested in working
cooperatively with the DoD could easily marginalize or ignore
the USDI, because the memorandum leaves no legal recourse to
force the DNI to cooperate. Conversely, if DoD or a future USDI
loses interest in working closely with the DNI, a statutory
requirement would make it much harder for the USDI to
disengage. If these principals successors are even marginally
less collegial, it is not hard to imagine how this relationship
might break down, unless it was required by law.
Most members of the Committee expressed support for
statutorily creating this position and believe it will ensure
proper Congressional oversight. Despite this, the amendment was
not adopted. Senator Warner assured the Committee that during
future consideration of the bill, the Senate Select
Intelligence Committee's views would be heard and taken into
account by the members of the Senate Armed Services Committee.
We strongly support this, and hope that the Senate consider
that the time is right to make certain that the new Director of
Defense Intelligence position is permanent.
Enshrining in statute the USDI's dual-hatted role as the
Director of Defense Intelligence in the ODNI sends a clear
signal to the bureaucracies of both DoD and the Intelligence
Community that this relationship is important to Congress and
is here to stay.
Richard Burr.
Christopher S. Bond.
Saxby Chambliss.
Orrin G. Hatch.
Olympia J. Snowe.
