59–010 

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 


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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 RepresentaVerDate Aug 31 2005 00:58 Jun 30, 2007 Jkt 059010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR125.XXX SR125

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tives.’’ 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, 


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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 


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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. 


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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.’’


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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. 


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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 


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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. 


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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, dualhatted 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. 


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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. 

Æ 


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