Human Rights Information Act (Introduced in House)

HR 2534 IH

108th CONGRESS

1st Session

H. R. 2534

To promote human rights, democracy, and the rule of law by providing a process for executive agencies for declassifying on an expedited basis and disclosing certain documents relating to human rights abuses in countries other than the United States.

IN THE HOUSE OF REPRESENTATIVES

June 19, 2003

Mr. LANTOS (for himself, Mr. SHAYS, Mr. TOM DAVIS of Virginia, Mr. WAXMAN, Mr. SMITH of New Jersey, Mrs. MALONEY, Mr. LAHOOD, Mr. KUCINICH, Ms. NORTON, Mr. LYNCH, Mr. COOPER, Ms. SCHAKOWSKY, Mr. MCGOVERN, Mr. DEFAZIO, Ms. BALDWIN, Mr. BLUMENAUER, Mr. ABERCROMBIE, Mr. MCNULTY, Mr. LEWIS of Georgia, Mr. SANDLIN, Mr. BROWN of Ohio, Mr. DELAHUNT, Mr. MCDERMOTT, Mr. STARK, Mr. OLVER, and Mr. FILNER) introduced the following bill; which was referred to the Committee on Government Reform

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A BILL

To promote human rights, democracy, and the rule of law by providing a process for executive agencies for declassifying on an expedited basis and disclosing certain documents relating to human rights abuses in countries other than the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Human Rights Information Act'.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) The commitment to the promotion and protection of human rights, democracy, and the rule of law around the world has led the United States to undertake tremendous diplomatic, economic, and military efforts to end systematic gross human rights violations abroad, consistent with the national interests and international leadership role of the United States. Such efforts are thwarted if the cycle of impunity for human rights violations in countries other than the United States is not broken, and the likelihood of the need for renewed United States engagements in those countries remains.

(2) The United States has a significant interest that newly established or reestablished democratic societies take credible steps to fully investigate and prosecute human rights violations. Such steps could include the creation of a national or international truth commission or tribunal, the appointment of a human rights officer, or the leading of official national investigations by credible sections of the civil society, including religious institutions and nongovernmental organizations.

(3) Executive agencies are in possession of documents pertaining to gross human rights violations abroad that are needed by foreign authorities to document, investigate, and subsequently prosecute instances of continued and systematic gross human rights violations, including those directed against citizens of the United States.

(4) The overwhelming importance to the United States of investigations by foreign authorities of gross human rights violations and the urgency of requests for legal assistance which the United States will continue to receive from foreign entities require a systematic process of expedited declassification and disclosure of documents pertaining to such gross human rights violations.

(5) After a 36-year history of being open to foreign requesters, the Freedom of Information Act (section 552 of title 5, United States Code) was amended in the 107th Congress by the Intelligence Authorization Act for Fiscal Year 2003 (Public Law 107-306) to prohibit agencies within the intelligence community from making records available to foreign entities or their representatives.

(6) Only an expedited systematic process can help ensure timely investigations of perpetrators of gross and systematic human rights violations and provide families with urgently needed information regarding the fate of relatives, including information making possible the location, identification, and burial of the remains of family members who have been killed, helping to bring closure for those families and beginning the process of national reconciliation.

SEC. 3. DEFINITIONS.

In this Act:

(1) HUMAN RIGHTS RECORD- The term `human rights record' means a record in the possession, custody, or control of the United States Government containing information about gross violations of internationally recognized human rights committed in a country other than the United States, except that such term does not include any record submitted to or compiled by the Immigration and Naturalization Service or its successors (including the Bureau of Border Security and the Bureau of Citizenship and Immigration Services).

(2) AGENCY- The term `agency' means the National Archives and Records Administration (and all the Presidential libraries it maintains), the National Security Council, the Office of National Drug Control Policy, and any executive agency of the United States Government charged with the conduct of foreign policy or foreign intelligence, including, but not limited to, the Department of State, the Department of Justice, the Department of Defense, the Central Intelligence Agency, the Agency for International Development, and the National Reconnaissance Office, except that such term does not include the Immigration and Naturalization Service or its successors (including the Bureau of Border Security and the Bureau of Citizenship and Immigration Services).

(3) APPEALS PANEL- The term `Appeals Panel' means the Interagency Security Classification Appeals Panel created by Executive Order number 12958 (or any successor entity or review procedure).

(4) GROSS VIOLATIONS OF INTERNATIONALLY RECOGNIZED HUMAN RIGHTS- The term `gross violations of internationally recognized human rights' has the meaning given that term in section 502B(d)(1) of the Foreign Assistance Act of 1961 (22 U.S.C. 2304(d)(1)).

(5) INTERNATIONAL BONA FIDE REQUEST- The term `international bona fide request' means a request for a human rights record from an individual or entity (such as an entity created by the United Nations, a regional international organization, a national truth commission, or the principal justice or human rights official of a country) that is carrying out an official mandate to investigate a pattern of gross violations of internationally recognized human rights, pursuant to a proceeding that--

(A) is a credible examination or investigation conducted in accordance with the mandate of the entity or official;

(B) is carried out in accordance with international law, including laws regarding appropriate jurisdiction of the person or entity carrying out the proceeding; and

(C) does not threaten to violate due process or other internationally recognized human rights.

(6) INTERNATIONAL LAW- The term `international law' means the rules and principles of general application dealing with the conduct and relations of nations and international organizations.

SEC. 4. DETERMINATIONS REQUIRED REGARDING REQUESTS FOR HUMAN RIGHTS RECORDS.

(a) DETERMINATION REQUIRED- If the President or the head of an agency receives a request for a human rights record from an individual or entity (such as an entity created by the United Nations, a regional international organization, a national truth commission, or the principal justice or human rights official of a country) that is carrying out an official mandate to investigate a pattern of gross violations of internationally recognized human rights, not later than 60 days after the receipt of such request the President (or the Attorney General on behalf of the President) shall make a determination whether such request is an international bona fide request.

(b) PROCEDURES IN CASE OF POSITIVE DETERMINATION- If the President (or the Attorney General on behalf of the President) makes a determination that a request under subsection (a) is an international bona fide request, not later than 120 days after the date that the President or Attorney General makes such determination, the heads of the appropriate agencies shall identify, review, and organize all human rights records with respect to such request for the purpose of declassifying and disclosing the records to the public. Except as provided in section 5 and subsection (d), all records described in the preceding sentence shall be made available to the public not later than 30 days after the date that a review under this subsection is completed.

(c) PROCEDURES IN CASE OF NEGATIVE DETERMINATION- If the President (or the Attorney General on behalf of the President) makes a determination that a request under subsection (a) is not an international bona fide request, such determination, and a detailed explanation regarding such determination, shall be published in the Federal Register not later than 90 days after the date that such request is received.

(d) CONFIDENTIALITY TO PROTECT ONGOING INVESTIGATIONS-

(1) DISCLOSURE OF RECORDS ON CONFIDENTIAL BASIS- The head of an agency disclosing human rights records as a result of a positive determination under subsection (b) may, at the agency head's initiative or at the request of the individual or entity that submitted the request for records, disclose such records to the individual or entity on a confidential basis if the agency head determines that confidential disclosure is necessary to avoid jeopardizing an ongoing investigation.

(2) DELAYED PUBLIC DISCLOSURE OF RECORDS- If the agency head determines that confidential disclosure of records under paragraph (1) is necessary, the agency head may withhold such records from public disclosure until the agency head determines, in consultation with the individual or entity that submitted the request, that the need for confidentiality no longer exists.

SEC. 5. GROUNDS FOR POSTPONEMENT OF DISCLOSURE OF RECORDS.

(a) IN GENERAL- The head of an agency may postpone disclosure of a human rights record or particular information in a human rights record under this Act only if the head of the agency determines that there is clear and convincing evidence that--

(1) the threat to the military defense, intelligence operations, or conduct of foreign relations of the United States that would result from disclosure of the human rights record is of such gravity that it outweighs the public interest, and such disclosure would reveal--

(A) an intelligence agent whose identity requires protection;

(B) an intelligence source or method--

(i) which is being utilized, or reasonably expected to be utilized, by the United States Government;

(ii) which has not been officially disclosed; and

(iii) the disclosure of which would interfere with the conduct of intelligence activities; or

(C) any other matter currently relating to the military defense, intelligence operations, or conduct of foreign relations of the United States, the disclosure of which would demonstrably impair the national security of the United States;

(2) the disclosure of the human rights record--

(A) would reveal the name or identity of a living individual who provided confidential information to the United States; and

(B) would pose a substantial risk of harm to such individual or to any member of the family, friend, or associate of such individual;

(3) the disclosure of the human rights record could reasonably be expected to constitute an unwarranted invasion of personal privacy, and that invasion of privacy would be so substantial that it outweighs the public interest; or

(4) the disclosure of the human rights record would compromise the existence of an understanding of confidentiality requiring protection between a United States Government agent and a cooperating individual or a foreign government, and disclosure would be so harmful that it outweighs the public interest.

(b) SPECIAL TREATMENT OF CERTAIN INFORMATION- It shall not be grounds for postponement of disclosure of a human rights record that an individual named in the human rights record was an intelligence asset of the United States Government, although the existence of such relationship may be withheld if any of the criteria set forth in subsection (a) are met. For purposes of the preceding sentence, the term `intelligence asset' means a covert agent as defined in section 606(4) of the National Security Act of 1947 (50 U.S.C. 426(4)).

SEC. 6. REVIEW OF DETERMINATIONS TO WITHHOLD RECORDS.

(a) DUTIES OF THE APPEALS PANEL- The Appeals Panel shall review all determinations by the head of an agency to postpone disclosure of a record under this Act.

(b) DETERMINATIONS OF THE APPEALS PANEL-

(1) IN GENERAL- The Appeals Panel may uphold a determination by the head of an agency to postpone disclosure of a record under this Act only if the Appeals Panel determines that there is clear and convincing evidence that--

(A) the record is not a human rights record; or

(B) the record or particular information in the record qualifies for postponement of disclosure under section 5.

(2) TREATMENT IN CASES OF NONDISCLOSURE- If the Appeals Panel concurs with an agency decision to postpone disclosure of a record under this Act, the Appeals Panel shall determine, in consultation with the head of the agency and consistent with the standards set forth in this Act, which, if any, of the alternative forms of disclosure described in paragraph (3) shall be made by the agency.

(3) ALTERNATIVE FORMS OF DISCLOSURE- The forms of disclosure under this paragraph are the following:

(A) Disclosure of any reasonably segregable portion of the human rights record after deletion of the portions described in paragraph (1)(B).

(B) Disclosure of a record that is a substitute for information that is not disclosed.

(C) Disclosure of a summary of the information in the human rights record.

(4) NOTIFICATION OF DETERMINATION-

(A) IN GENERAL- Upon completion of a review under this section, the Appeals Panel shall notify the head of the agency in control or possession of the record that was the subject of the review of its determination and shall, not later than 14 days after the determination, publish the determination in the Federal Register.

(B) NOTICE TO PRESIDENT- The Appeals Panel shall notify the President of a determination under this section. The notice shall contain a written unclassified justification for the determination, including an explanation of the application of the criteria set forth in section 5.

(5) GENERAL PROCEDURES- The Appeals Panel shall publish in the Federal Register guidelines regarding its policy and procedures for adjudicating appeals under this section.

(c) PRESIDENTIAL REVIEW OF APPEALS PANEL DETERMINATIONS-

(1) DISCLOSURE OR POSTPONEMENT OF DISCLOSURE- The President shall have the sole and nondelegable authority to review any determination of the Appeals Panel under this Act, and such review shall be based on the criteria set forth in section 5. If the Appeals Panel overturns the determination of the head of an agency to withhold records from declassification, not later than 30 days after the Appeals Panel's determination and notification to the head of the agency under subsection (b)(4), the President shall provide the Appeals Panel with an unclassified written certification specifying the President's determination and stating the reasons for the decision, including, in the case of a determination to postpone disclosure, the criteria set forth in section 5 that are the basis for the President's determination.

(2) RECORD OF PRESIDENTIAL POSTPONEMENT- The Appeals Panel shall, upon receipt of the President's determination, publish in the Federal Register a copy of any unclassified written certification, statement, and other materials transmitted by or on behalf of the President with regard to the postponement of disclosure of a record under this Act.

SEC. 7. IDENTIFICATION, REVIEW, AND PUBLIC DISCLOSURE OF CERTAIN HUMAN RIGHTS RECORDS.

(a) IN GENERAL- Not later than 120 days after the date of the enactment of this Act, the head of each agency shall identify, review, and organize all human rights records regarding activities occurring in Guatemala and Honduras for the purpose of declassifying and disclosing such records to the public. Except as provided in section 5, all records described in the preceding sentence shall be made available to the public not later than 30 days after the date that a review under this section is completed.

(b) REPORT TO CONGRESS- Not later than 150 days after the date of the enactment of this Act, the President shall report to Congress regarding each agency's compliance with the provisions of this section.

SEC. 8. RULES OF CONSTRUCTION.

(a) IN GENERAL- Notwithstanding any other provision of law, the provisions of this Act shall govern the declassification and public disclosure of human rights records by executive agencies.

(b) JUDICIAL REVIEW- Nothing in this Act shall be construed to preclude judicial review, under chapter 7 of title 5, United States Code, of final actions taken or required to be taken under this Act. For purposes of this Act, determinations by the Attorney General made on behalf of the President under section 4(a) shall be subject to the same standard of judicial review as determinations by the President.

SEC. 9. CREATION OF ADDITIONAL POSITIONS FOR APPEALS PANEL.

Two additional positions shall be created for the Appeals Panel solely for purposes of carrying out the provisions of this Act. In filling such positions, the President--

(1) shall appoint individuals who--

(A) were not involved in making determinations that could be reviewed by the Appeals Panel;

(B) have demonstrated substantial human rights expertise; and

(C) are able to meet the security requirements for such positions; and

(2) shall seek recommendations with respect to such positions from nongovernmental human rights organizations.