FY 2005 Defense Authorization Act - Selected Excerpts on Security Policy

RONALD W. REAGAN NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005

H.R. 4200, as approved in conference and adopted by the House and Senate on October 9, 2004
[selected excerpts on security policy, with accompanying conference report language]

Sec. 735. Declassification of Information on Exposures to Environmental Hazards
Sec. 914. Nondisclosure of Certain Products of Commercial Satellite Operations
Sec. 1062. Standards for Disqualification from Eligibility for Department of Defense Security Clearance
Sec. 1082. Sense of the Congress Concerning Media Coverage of the Return to the United States of the Remains of Deceased Members of the Armed Forces from Overseas
Sec. 1094. Findings and Sense of Congress Concerning Army Specialist Joseph Darby
Fort Meade - Work Related Illnesses

SEC. 735. DECLASSIFICATION OF INFORMATION ON EXPOSURES TO ENVIRONMENTAL HAZARDS.
(a) REQUIREMENT FOR REVIEW.—The Secretary of Defense shall review and, as determined appropriate, revise the classification policies of the Department of Defense with a view to facilitating the declassification of data that is potentially useful for the monitoring and assessment of the health of members of the Armed Forces who have been exposed to environmental hazards during deployments overseas, including the following data:
(1) In-theater injury rates.
(2) Data derived from environmental surveillance.
(3) Health tracking and surveillance data.
(b) CONSULTATION WITH COMMANDERS OF THEATER COMBATANT COMMANDS.—The Secretary shall, to the extent that the Secretary considers appropriate, consult with the senior commanders of the in-theater forces of the combatant commands in carrying out the review and revising policies under subsection (a).

[Accompanying report language (from H.Rep. 108-767):]
Declassification of information on exposures to environmental hazards (sec. 735)
The Senate amendment contained a provision (sec. 1305) that would require the Secretary of Defense to review and revise as appropriate the classification policies of the Department of Defense to facilitate the declassification of data that is potentially useful for monitoring and assessing the health of members of the Armed Forces who have been exposed to environmental hazards during overseas deployments.
The House bill contained no similar provision.
The House recedes.
SEC. 914. NONDISCLOSURE OF CERTAIN PRODUCTS OF COMMERCIAL SATELLITE OPERATIONS.
(a) MANDATORY DISCLOSURE REQUIREMENTS INAPPLICABLE.—The requirements to make information available under section 552 of title 5, United States Code, shall not apply to land remote sensing information.
(b) LAND REMOTE SENSING INFORMATION DEFINED.—In this section, the term ‘‘land remote sensing information’’—
(1) means any data that—
(A) are collected by land remote sensing; and
(B) are prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license issued pursuant to the Land Remote Sensing Policy Act of 1992 (15 U.S.C. 5601 et seq.); and
(2) includes any imagery and other product that is derived from such data and which is prohibited from sale to customers other than the United States Government and United States Government-approved customers for reasons of national security pursuant to the terms of an operating license described in paragraph (1)(B).
(c) STATE OR LOCAL GOVERNMENT DISCLOSURES.— Land remote sensing information provided by the head of a department or agency of the United States to a State, local, or tribal government may not be made available to the general public under any State, local, or tribal law relating to the disclosure of information or records.
(d) SAFEGUARDING INFORMATION.—The head of each department or agency of the United States having land remote sensing information within that department or agency or providing such information to a State, local, or tribal government shall take such actions, commensurate with the sensitivity of that information, as are necessary to protect that information from disclosure other than in accordance with this section and other applicable law.
(e) ADDITIONAL DEFINITION.—In this section, the term ‘‘land remote sensing’’ has the meaning given such term in section 3 of the Land Remote Sensing Policy Act of 1992 (15 U.S.C. 5602).
(f) DISCLOSURE TO CONGRESS.—Nothing in this section shall be construed to authorize the withholding of information from the appropriate committees of Congress.

Nondisclosure of certain products of commercial satellite operations (sec. 914)
The Senate amendment contained a provision (sec. 1034) that would exempt from disclosure under the Freedom of Information Act (FOIA), section 552 of title 5, United States Code, data that are collected by land remote sensing and are prohibited from sale to customers other than the United States and its affiliated users under the Land Remote Sensing Policy Act of 1992, section 5601 et. seq. of title 15, United States Code. The exemption would also include any imagery and other product that is derived from such data. State and local laws mandating disclosure would be preempted.
The House bill contained no similar provision.
The House recedes with an amendment that would clarify that the restrictions imposed on such data or imagery are imposed for reasons of national security pursuant to the terms of operating licenses issued pursuant to the Land Remote Sensing Policy Act, and that would extend the preemption to include tribal law. The amendment would alos provide that nothing in this section shall be construed to authorize the withholding of information from Congress.
SEC. 1062. STANDARDS FOR DISQUALIFICATION FROM ELIGIBILITY FOR DEPARTMENT OF DEFENSE SECURITY CLEARANCE.
(a) DISQUALIFIED PERSONS.—Subsection (c)(1) of section 986 of title 10, United States Code, is amended—
(1) by striking ‘‘and’’ and inserting ‘‘, was’’; and
(2) by inserting before the period at the end the following: ‘‘, and was incarcerated as a result of that sentence for not less than one year’’.
(b) WAIVER AUTHORITY.—Subsection (d) of such section is amended to read as follows:
‘‘(d) WAIVER AUTHORITY.—In a meritorious case, an exception to the prohibition in subsection (a) may be authorized for a person described in paragraph (1) or (4) of subsection (c) if there are mitigating factors. Any such waiver may be authorized only in accordance with standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President.’’.
Standards for disqualification from eligibility for Department of Defense security clearance (sec. 1062)
The House bill contained a provision (sec. 1052) that would amend section 986 of title 10, United States Code, to clarify a standard for disqualification and allow delegation of waiver authority, in accordance with standards and procedures establish[ed] by Executive Order or other Presidential guidance.
The Senate amendment contained no similar provision.
The Senate recedes.
SEC. 1082. SENSE OF CONGRESS CONCERNING MEDIA COVERAGE OF THE RETURN TO THE UNITED STATES OF THE REMAINS OF DECEASED MEMBERS OF THE ARMED FORCES FROM OVERSEAS.
(a) FINDINGS.—Congress makes the following findings:
(1) The Department of Defense, since 1991, has relied on a policy of no media coverage of the transfers of the remains of deceased members of the Armed Forces—
(A) at Ramstein Air Force Base, Germany;
(B) at Dover Air Force Base, Delaware, and the Port Mortuary Facility at Dover Air Force Base; and
(C) at interim stops en route to the point of final destination in the transfer of the remains.
(2) The principal focus and purpose of the policy is to protect the wishes and the privacy of families of deceased members of the Armed Forces during their time of great loss and grief and to give families and friends of the dead the privilege to decide whether to allow media coverage at the member’s duty or home station, at the interment site, or at or in connection with funeral and memorial services.
(3) In a 1991 legal challenge to the Department of Defense policy, as applied during Operation Desert Storm, the policy was upheld by the United States District Court for the District of Columbia, and on appeal, by the United States Court of Appeals for the District of Columbia in the case of JB Pictures, Inc. v. Department of Defense and Donald B. Rice, Secretary of the Air Force on the basis that denying the media the right to view the return of remains at Dover Air Force Base does not violate the first amendment guarantees of freedom of speech and of the press.
(4) The United States Court of Appeals for the District of Columbia in that case cited the following two key Government interests that are served by the Department of Defense policy:
(A) Reducing the hardship on the families and friends of the war dead, who may feel obligated to travel great distances to attend arrival ceremonies at Dover Air Force Base if such ceremonies were held.
(B) Protecting the privacy of families and friends of the dead, who may not want media coverage of the unloading of caskets at Dover Air Force Base.
(5) The Court also noted, in that case, that the bereaved may be upset at the public display of the caskets of their loved ones and that the policy gives the family the right to grant or deny access to the media at memorial or funeral services at the home base and that the policy is consistent in its concern for families.
(b) SENSE OF CONGRESS.—It is the sense of Congress that the Department of Defense policy regarding no media coverage of the transfer of the remains of deceased members of the Armed Forces—
(1) appropriately protects the privacy of the families and friends of the deceased; and
(2) is consistent with United States constitutional guarantees of freedom of speech and freedom of the press.
Sense of the Congress concerning media coverage of the return to the United States of the remains of deceased members of the Armed Forces from overseas (sec. 1082)
The Senate amendment contained a provision (sec. 366) that would state the sense of the Congress that the Department of Defense policy regarding no media coverage of the transfer of the remains of deceased members of the Armed Forces appropriately protects the privacy of the families and friends of the deceased, and is consistent with constitutional guarantees of freedom of speech and freedom of the press.
The House bill contained no similar provision.
The House recedes with a technical amendment.
SEC. 1094. FINDINGS AND SENSE OF CONGRESS CONCERNING ARMY SPECIALIST JOSEPH DARBY.
(a) FINDINGS.—Congress makes the following findings:
(1) The need to act in accord with one’s conscience, risking one’s career and even the esteem of one’s colleagues by pursuing what is right is especially important today.
(2) While the Department of Defense investigates the horrific abuses in American detention facilities in Iraq, the Nation should bear in mind that the abuses were only brought to light because of the courage of an American soldier.
(3) By alerting his superiors to abuses at Abu Ghraib prison in Iraq, Army Specialist Joseph Darby demonstrated the courage to speak out and do what is right for his country.
(4) Such an action is especially important in light of the many challenges facing the country.
(5) Specialist Darby deserves the Nation’s thanks for speaking up and for standing up for what is right.
(b) SENSE OF CONGRESS.—It is the sense of Congress that—
(1) the Secretary of Defense should make every protection available to Army Specialist Joseph Darby and others who demonstrate such courage; and
(2) Specialist Darby should be commended appropriately by the Secretary of the Army.
Findings and sense of Congress concerning Army Specialist Joseph Darby (sec. 1094)
The House bill contained a provision (sec. 1206) that would recognize and thank U.S. Army Specialist Joseph Darby for his courageous actions in alerting his superiors to misconduct by American soldiers at Abu Ghraib prison in Iraq, and express the sense of Congress that Specialist Darby should be afforded appropriate protection and recognition by the Department of Defense.
The Senate amendment contained no similar provision.
The Senate recedes.

TITLE XI - CIVILIAN PERSONNEL MATTERS
Fort Meade - Work Related Illnesses
The conferees are concerned with continued reports of work related illnesses among the National Security Agency (NSA) employees at Fort Meade, Maryland. The conferees direct the Secretary of Defense to undertake an epidemiological study and health hazard evaluation related to NSA buildings at Fort Meade. The conferees believe the National Institute for Occupational Safety and Health of the Department of Health and Human Services is an appropriate federal government organization to perform such a study. The conferees expect the study to be compeleted by March 2006.