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Calendar No. 16
110th Congress Report
1st Session 110-3
AMENDMENT OF SENATE RESOLUTION 400 (94TH CONGRESS)
January 30, 2007.--Ordered to be printed
Mr. Rockefeller, from the Select Committee on Intelligence, submitted
R E P O R T
[To accompany S. Res. 50]
The Select Committee on Intelligence, having considered an
original resolution (S. Res. 50) amending Senate Resolution 400
(94th Congress), to make amendments arising from the enactment
of the Intelligence Reform and Terrorism Prevention Act of
2004, and to make other amendments, reports favorably thereon
and recommends that the resolution be agreed to.
PURPOSE OF RESOLUTION
Senate Resolution 400 of the 94th Congress (S. Res. 400) is
the basic jurisdictional and procedural charter of the Select
Committee on Intelligence. Since its adoption by the Senate in
1976, there have been organizational changes in the
Intelligence Community that should be reflected in S. Res. 400.
Principal among them, as a result of the Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, is
the replacement of the position of Director of Central
Intelligence (DCI) with that of the Director of National
Intelligence (DNI) and the Director of the Central Intelligence
Agency. The resolution that the Committee is now reporting also
provides for technical changes to conform S. Res. 400 to
several matters internal to the Senate that have been changed
since 1976 by other Senate resolutions.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
Section 1. Amendments arising from enactment of the Intelligence Reform
Section 3(a)(1) of S. Res. 400 provides for the
jurisdiction of the Select Committee on Intelligence over
listed elements of the Intelligence Community. Section 3(a)(4)
of S. Res. 400 grants the Committee jurisdiction over
authorizations for those elements. Section 12 of S. Res. 400
implements that grant of jurisdiction by barring appropriations
for the activities of the listed elements of the Intelligence
Community unless there has been an authorization. Heading these
lists has been ``The Central Intelligence Agency and the
Director of Central Intelligence,'' or in the case of Section
12 ``The activities of the Central Intelligence Agency and the
Director of Central Intelligence.''
The Intelligence Reform Act of 2004 assigns to the DNI two
functions that had previously been assigned to the DCI, namely,
serving as head of the Intelligence Community and being the
principal adviser to the President for intelligence matters
relating to national security. The Act assigns to the CIA
Director the third principal function of the former DCI:
serving as head of the CIA. It provides for an Office of the
Director of National Intelligence to assist the DNI in carrying
out his or her responsibilities.
To align the grant of committee jurisdiction in S. Res. 400
with the present organization of the Intelligence Community
that has resulted from Intelligence Reform Act of 2004, section
1 of the resolution that the Committee is now reporting will
replace the outdated references in S. Res. 400 to the Director
of Central Intelligence. By virtue of paragraphs (1)(A)(ii) and
(iii) of Section1 of the amendments now being reported, S. Res.
400 will provide explicitly for Intelligence Committee
``(A) The Office of the Director of National
Intelligence and the Director of National Intelligence.
``(B) The Central Intelligence Agency and the
Director of the Central Intelligence Agency.''
Section 1(4)(B) of the amendments makes a corresponding
change to section 12 of S. Res. 400. In fact, since enactment
of the 2004 Reform Act, the Senate has recognized that
Intelligence Committee jurisdiction covers all parts of the
former DCI's jurisdiction, with matters concerning the DNI
being referred to the Intelligence Committee, including
nominations to that position. The amendments ratify that
The general Senate practice on the sequential referral to a
second committee of legislation that has been reported by a
committee is that the sequential referral may be ordered by
unanimous consent or under Rule XVII of the Standing Rules of
the Senate on a motion by the Majority and Minority Leaders or
their designees. To address the circumstances in which another
committee has jurisdiction over a department that contains an
Intelligence Community element, the Senate in Section 3(b) of
S. Res. 400 established a special procedure for the sequential
referral of matters in which the Intelligence Committee shares
jurisdiction with another committee of the Senate.
Under that procedure, if the Intelligence Committee reports
a matter that is also within the jurisdiction of another
committee, or another committee reports a matter that is also
within the jurisdiction of the Intelligence Committee, the
chairman of the committee that also has jurisdiction may obtain
a sequential referral to his or her committee simply by
requesting it. The sequential referral shall be for ten days
that the Senate is in session and is extendable for five
additional days of session at the request of the Majority or
However, since the adoption of S. Res. 400 in 1976, section
3(b) of S. Res. 400 has specifically excepted from this special
sequential referral rule legislation involving the CIA and the
DCI. Section 1(1)(B) of the amendments that the Committee is
now reporting applies that exception to legislation involving
both successors of the DCI: the DNI as head of the Intelligence
Community and the CIA Director as head of the CIA, as well as
to the entity that supports each, the ODNI and the CIA. But, as
section 3(c) of S. Res. 400 (which will not be changed by these
amendments) also makes clear, nothing in S. Res. 400 shall be
construed as restricting the authority of any committee to
study or review an intelligence activity that directly affects
a matter otherwise within that committee's jurisdiction.
Further, Rule XVII, the general Senate rule on sequential
referrals, will continue to allow for sequential referrals on
the motion of the Majority and Minority Leaders or their
designees. Nor will the amendments change the application of
the special sequential procedure to the Intelligence
Committee's annual authorization bill as that bill regularly
contains authorization matters beyond the Office of the
Director of National Intelligence and the CIA that render the
bill subject to sequential referral.
In addition to the changes described above, the amendments
included in section 1 of the resolution now being reported
insert the DNI or replace outdated references to the DCI in
other parts of S. Res. 400, as appropriate, such as with regard
to the requirement in section 4 of S. Res. 400 for obtaining an
annual report from the DNI as well as the CIA Director.
Section 2. Technical amendments relating to the current name of the
Two sections of S. Res. 400 provide for the
responsibilities of the Senate committee that has jurisdiction
over ethics matters.
Section 6 of S. Res. 400 requires that no employee or
contractor of the Intelligence Committee shall be given access
to classified information unless agreeing in writing and under
oath to be bound by the rules of the Senate including the
jurisdiction of the Senate committee with jurisdiction over
ethics. Section 8 of S. Res. 400 provides for the duty of that
committee to investigate and report to the Senate any
unauthorized disclosure of intelligence information by any
Member, officer, or employee of the Senate.
At the time of the adoption of S. Res. 400 in 1976, the
name of the Senate committee with jurisdiction over ethics
matters was the Select Committee on Standards and Conduct. In
1977, the Senate changed the name of that committee to the
Select Committee on Ethics. The resolution that accomplished
that, S. Res. 4, also provided that any resolution, rule, or
order of the Senate that referred to the Select Committee on
Standards and Conduct shall thereafter be considered as
referring to the Select Committee on Ethics.
Section 2 of the resolution that our Committee is now
reporting amends Sections 6 and 8 of S. Res. 400 to replace the
outdated references to the Select Committee on Standards and
Conduct with references to the Select Committee on Ethics.
3. Technical amendments relating to outdated references to an
intelligence Division of the FBI
In two places in S. Res. 400--sections 3 and 12, in
describing the Committee's jurisdiction over intelligence
matters at the Federal Bureau of Investigation, the Senate in
1976 described that jurisdiction as ``the intelligence
activities of the Federal Bureau of Investigation, including
all activities of the Intelligence Division.'' The FBI no
longer has a unit named ``the Intelligence Division.'' The
intelligence functions of the FBI are now located in a National
Security Branch. Section 3 of the amendments now being reported
by the Committee will strike the outdated references to the
Intelligence Division. As amended, sections 3 and 12 will cover
``the intelligence activities of the Federal Bureau of
Investigation'' under whatever name may be used within the FBI.
4. Technical amendments relating to references to Senate Rules
The technical amendments in Section 4 of the resolution
that the Committee is now reporting replace with current
references to the Standing Rules of the Senate three out-of-
date references in S. Res. 400 to Senate rules, including rules
that in 1976 had been located in the Legislative Reorganization
Act of 1946. One of the references is in Section 2(b) of S.
Res. 400 which bars the Chairman and Vice Chairman of the
Intelligence Committee from serving as the chairman or ranking
minority member of other standing, select, or joint committees.
The other two are in Section 8(b)(5) of S. Res. 400. They
relate to the authority of the Majority and Minority Leaders to
agree to a time for the full Senate to consider a vote by the
Intelligence Committee to disclose information.
The amendments do not change the substance of the
referenced rules or the operation of S. Res. 400, but only show
where the applicable rules may be currently found. The
Committee, in fact, has been printing the correct location of
the referenced rules in its periodic reprinting of S. Res. 400
and the rules of the Committee, but no record has been found
that shows that the Senate (whose action is needed to amend S.
Res. 400) has made these technical changes to S. Res. 400.
5. Technical amendments to correct inadvertent word error resulting
from S. 445 of the 108th Congress
Section 201 of S. Res. 445, agreed to October 9, 2004
(108th Congress), reorganized and amended Section 3(b) of S.
Res. 400. The 2004 amendments to S. Res. 400 included an
inadvertent word error. In Section 3(b)(3) of S. Res. 400 (as
amended by S. Res. 445)--a provision on the computation of time
for sequential referrals--the term ``the session'' should be
``in session.'' Section 5 of the resolution that the Committee
is now reporting makes that correction.
Motion to report resolution favorably
On January 30, 2007, on the motion of Senator Bond and a
quorum for reporting being present, by a vote of 15 ayes and 0
noes the Committee voted to report the resolution 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;