[Senate Report 110-125]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 260
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-125

======================================================================



 
        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

                                _______
                                

                 June 29, 2007.--Ordered to be printed

                                _______
                                

 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.

                                  
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