Congressional Record: September 27, 2004 (Senate)
Page S9714-S9719
NATIONAL INTELLIGENCE REFORM ACT OF 2004
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to consideration of S. 2845, which the clerk will report.
[...]
Amendment No. 3704
(Purpose: To establish an Independent National Security Classification
Board in the executive branch)
Mr. WYDEN. I send an amendment to the desk on behalf of myself,
Senator Lott, Senator Bob Graham, and Senator Snowe.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Oregon [Mr. Wyden], for himself, Mr. Lott,
Mr. Graham of Florida, and Ms. Snowe, proposes an amendment
numbered 3704.
(The text of the amendment is printed in today's Record under ``Text
of Amendments.'')
Mr. WYDEN. Without turning this into a bouquet-tossing contest, I
will say how lucky I think we are to have Senator Collins and Senator
Lieberman, who have long practiced good government, handling this
legislation. This is going to be a long and arduous task and to have
this bipartisan duet at the helm is what is going to make this
possible. I have enjoyed working with them on this and so many other
issues in the past. We are going to get this done. The country is going
to be safer and stronger for it, and I am very grateful for the work of
the Senator from Maine and the Senator from Connecticut.
Governor Kean, the chairman of the 9/11 Commission, said three-
quarters of the classified material he reviewed for the Commission
should not have been classified in the first place. I think Governor
Kean's comments reflect the state of where we are with respect to how
Government documents are classified today, and it is for that reason
that a bipartisan coalition has spent a considerable amount of time on
the Intelligence Committee. Senator Lott and Senator Snowe and I serve
there now.
[[Page S9715]]
Senator Bob Graham, of course, chaired the committee, and the four of
us, two Democrats, two Republicans, have teamed up so as to try to make
sure that in this important reform legislation some common sense is
brought to the way that information is classified for national security
purposes.
The ability to make documents secret is one of the most powerful
tools in our Government. It is a power wielded generously by those in
18 agencies that deal with intelligence. My concern is that the Senate
could spend weeks debating flowcharts and organizational changes and
moving the boxes around with respect to where people in the
intelligence community sit, but if the underlying way in which
information is classified is not reformed, it is going to be very hard
to make information sharing throughout the intelligence community
effective. Very little will have been accomplished if information
continues to be classified for purposes of protecting somebody's
political career rather than our national security or if classification
decisions continue to deprive the American people of their ability to
judge the effectiveness of their Government on national security
matters.
The 9/11 Commission report says the need to restructure the
intelligence community grows out of six problems. One of them, the
Commission says at page 410, is that, in their words, ``The
intelligence community is too complex and secret.''
The Commission states:
Over the decades, the agencies and the rules surrounding
the intelligence community have accumulated to a depth that
practically defies public comprehension. . . . Even the most
basic information about how much money is actually allocated
to or within the intelligence community and most of its key
components is shrouded from public view.
The bipartisan amendment Senator Lott, Senator Bob Graham, Senator
Snowe, and I offer today is premised on the belief that it is time to
clear the fog of secrecy and that it is possible to do that so as to
protect this country's national security. Our legislation establishes a
three-person board with the President and the bipartisan leadership in
the House and Senate each recommending one member, subject to Senate
confirmation. Our board would have two tasks: first, to review and make
recommendations on the standards and processes used to classify
information for national security purposes, and, second, to serve as a
standing body to act on congressional and certain executive branch
requests to reexamine how a Government document has been classified.
As entities, from the traditional intelligence community to the
Environmental Protection Agency, now have the power to classify
documents, the board would look at national security classification
across our Government. Its creation would give the Congress, for the
first time, an independent body to which it can appeal a national
security classification decision.
President Truman noted that the Nation's primary intelligence agency,
the CIA, was created, ``for the benefit and convenience of the
President.'' But the United States cannot preserve an open and
democratic society when one branch of Government has a totally free
hand to shut down access to information. The lack of an independent
appeals process for Congress, in terms of the view of the four of us,
two Democrats and two Republicans, tips the scale too far toward
secrecy for any administration, and our bipartisan group of four
Senators seeks to correct that imbalance.
The 1946 Atomic Energy Act established the principle that some
information is born classified. There are certainly important sources
and pieces of information that must never be compromised. But over the
years, millions and millions of documents that weren't born classified
have inherited or adopted or married into a classification. Keeping
information secret for political purposes or horse trading intelligence
data, especially during this critical time, a time of heightened
security, is unacceptable.
Our Government must begin to be more accountable to its citizens.
Having all appropriate information about national security is essential
to Congress's congressionally prescribed oversight role. Access to
information about their own security is the people's right. It is time
to stop hiding the facts they deserve to know. Our bipartisan proposal
does just that in a fashion that protects America's national security.
According to the late Senator Moynihan, who was an expert on secrecy
in Government:
. . . much of the structure of secrecy now in place in the
U.S. Government took shape in just 11 weeks, in the spring of
1917, while the Espionage Act was debated and signed into
law.
Eighty years later, Senator Moynihan would note that 6,610,154
secrets were created in just 1 year alone. In fact, only a small
portion, or 1.4 percent, was created pursuant to statutory authority,
the Atomic Energy Act. Senator Moynihan labeled the other 98.6 percent
``pure creatures of bureaucracy,'' created via Executive orders.
The Secrecy Report Card issued in August by a coalition of groups
including the American Society of Newspaper Editors found the American
Government spent $6.5 billion last year creating 14 million new
classified documents. This is a 60-percent increase in secrets since
2001. These numbers do not even include CIA documents. The Secrecy
Report Card also points out that agencies are becoming more creative in
their classification systems.
In addition to the traditional ``Limited Official Use,'' ``Secret''
and ``Top Secret,'' some agencies now have something called ``Sensitive
Security Information,'' ``Sensitive Homeland Security Information,''
``Sensitive But Unclassified,'' or ``For Official Use Only.'' It has
gotten to the point where Mr. William Leonard of the National Archives
Information Security Office--the gentleman who oversees classification
and declassification policies; he is known to some as the secrecy
czar--believes that the system defies logic in many respects. He has
called today's classification system ``a patchwork quilt'' that is a
result of ``a hodgepodge of laws, regulations and directives.'' In
reality, the Federal Government has so many varieties of classification
that it can make Heinz look modest.
In Mr. Leonard's view, the classification system for national system
has lost touch with the basics to the point that some agencies don't
know how much information they classify or whether they are classifying
more or less than they once did or whether they are classifying too
much or too little.
The executive branch exerts almost total control over what should or
should not be classified. The Congress has no ability to declassify
material. So there is no self-correcting mechanism in the system. Even
if Members of Congress wish to share information with constituents, it
is so complicated for the Congress to release information to the public
that no one has ever tried to use this convoluted process. The
executive branch has a little-known group that can review
classification issues, but it is seldom used and open only to executive
branch employees and not to Members of Congress.
What all this means in practice is that with the thump of a stamp
marked ``Secret'' some unelected person in the belly of a Federal
building has prevented Americans from gaining access to information.
That decision cannot be appealed, even by the Congress. There is no
independent review of classification decisions by the executive branch.
With no chance of unbiased review, classification decisions are ready
and ripe for abuse. Agencies wishing to hide their flaws and
politicians--and I emphasize this, Mr. President--of both political
parties who wish to make political points can abuse the classification
guidelines to their advantage. And four Senators, two Democrats and two
Republicans, wish to change that.
I, for one, do not subscribe to the view that there is an inherent
conflict between the executive branch's accountability to Congress and
the American people on the one hand and the constitutional role of the
President as Commander in Chief on the other. I believe that a balance
can and must be struck between the public's need for sound, clear-eyed
analysis and executive desire to protect the Nation's legitimate
security interests.
I believe we can fight terrorism ferociously without limiting the
rights of our citizens to information. That is what the sponsors of
this legislation seek to do.
There should be no room in this equation I have described for the use
of
[[Page S9716]]
classification to insulate officials and agencies from political
pressure. As a member of the Senate Intelligence Committee, I have had
lengthy discussions with my colleagues on a bipartisan basis about how
to strike such a balance. It is the view of Senator Lott, Senator
Graham, Senator Snowe, and I that in proposing this amendment we have
an opportunity to make the broad overhaul of the national security
classification system and to do it in a way that will strengthen the
overall reform effort that the Senate is working on.
Finally, the independent board would review and make recommendations
on overhauling the standards and process used in the classification
system for national security information. The board then submits
proposed new standards and processes to both Congress and the executive
branch for comment and review. It would then implement the new
standards and processes once there has been full opportunity by the
executive branch to comment. The board would then begin on an ongoing
basis to implement a system, continue to review and make
recommendations on current and new national security classifications
subject to executive branch veto that must be accompanied by a public,
written explanation.
The balance in this legislation ensures that the public and the
Congress have access to an independent board for national security
matters while ensuring that the Commander in Chief maintain the
constitutional prerogative that the Commander in Chief must have with
respect to military and foreign policy matters.
For far too long, the executive branch has adhered to the motto,
``When in doubt classify.'' Withholding information to protect
political careers and entrenched bureaucracies is a disservice to the
American people. It is a perversion of a policy intended to save lives,
a perversion that weakens our democracy, and one that could even
endanger our people. It is time to throw open the curtains and let the
sun shine on American democracy and on the governmental processes we
utilize today.
That is what this amendment does.
I see both the chairman and ranking member in the Chamber. Both of
them have had an opportunity to see this amendment. I know both of them
have a lot on their plates as we try to deal with this important
legislation.
I think I can speak for Senator Lott, Senator Bob Graham, and Senator
Snowe in saying we are anxious to work with the two of them. I know
staff has some ideas, some of which strike me as very good, for ways in
which we can improve this legislation. I wrap up only by way of saying
that I think, with the excellent work they have already done as relates
to the organizational structure and the flowcharts and all of the
things that we are going to be debating over the next, I hope, few
weeks rather than months--but I only say that to maximize the changes
which will be made organizationally--we need to find a new way to
strike a balance between protecting the country's national security and
the people's right to know. I think that balance is out of whack today.
If you look, for example, even at the exceptional work done by
Senator Roberts and Senator Rockefeller with our committee's report on
the Iraq situation with respect to intelligence, had Senator Roberts
and Senator Rockefeller not dug in as aggressively as they have, my
sense is that well over 50 percent of that report would have been
classified. In fact, the most important sections would literally
receive black ink. We have to do better. I think we can do it on a
bipartisan basis. I think doing it will ensure that the important work
Senator Collins and Senator Lieberman are steering the Senate to will
be better. I am anxious to work with both of them and staff. They have
both been very gracious as always. I know my cosponsors join me in
saying that as we look at various ways to refine this, we are anxious
to continue to work in a bipartisan way.
I yield the floor.
The PRESIDING OFFICER (Mr. Cornyn). The Senator from Maine is
recognized.
Ms. COLLINS. Mr. President, I appreciate the commitment of the
Senator from Oregon to work with us on this issue. I certainly
understand his frustration at a tendency to overclassify information
that it is not warranted to be classified, that is not necessary to
protect intelligence sources and methods.
I note a couple of points. One is that the Collins-Lieberman bill
vests in the national intelligence director the authority to establish
requirements and procedures for the classification of intelligence
information.
Another portion of our bill requires the national intelligence
director to establish intelligence-reporting guidelines that maximize
the dissemination of information, while protecting intelligence sources
and methods.
In addition, the administration has expressed grave reservations
about the amendment as it is now drafted.
What I would like to suggest and what the Senator from Oregon has
graciously offered to do is have our staff on both sides of the aisle
sit down with the Senator, see if we can address some of the
administration's concerns, see if we can look at language that is
already in the bill, and understand how that interacts with the
Senator's proposal.
I thank him for his commitment to this area. He has identified a very
real problem. I hope, perhaps, we can come up with an approach that
will address his concerns.
Mr. LIEBERMAN. Mr. President, I also thank my friend and colleague
from Oregon for a very thoughtful statement and a very thought-
provoking amendment that he has offered. I know it comes out of his
service and the service of the other bipartisan cosponsors on the
Intelligence Committee and some experiences they have had, shall we
say, which have not been satisfying, in which they have believed they
and the public have been deprived of information in a timely way that
did not allow them to make informed judgments.
I want to say a few things after thanking Senator Wyden. One is there
are members of our committee who both shared the experience of
membership on the Intelligence Committee and brought it to bear on the
deliberations of our committee in presenting the Collins-Lieberman
proposal which is now before the Senate. That all goes to the priority
on sharing of information and the independence and objectivity of
intelligence, and on the responsibility of the intelligence community
to Congress to provide timely and objective information. And the
proposal that the committee brought out is full of provisions aimed at
doing just that.
Senator Collins has just indicated the central provision for which
the national intelligence director is responsible is reviewing and
establishing standards for classification of intelligence.
Remember, in the original 9/11 Commission proposal, the national
intelligence director was in the Executive Office of the President. We
decided--and the Commission ultimately agreed with us--that was a bad
idea; that we wanted to establish a standard of independence, openness,
and objectivity. We took the position out. The national intelligence
director will now be an independent agent setting these standards for
classification.
We have broadly adopted a transformational approach to information in
which we quite explicitly say we want to go from the Cold-War-era
notion that there was a need only to have information if you really
needed to know, and that the priority here is on a need to share unless
there is a reason not to share. That goes in some cases not to the
public but to the other intelligence agencies of our Government and to
State and local law enforcement intelligence agencies.
Senator Levin, a member of our committee, greatly strengthened
building on our requirement in the underlying bill that the national
intelligence director must provide national intelligence to Congress
and the President that is ``timely, objective, independent of political
consideration and based on all sources available to the intelligence
community.'' Senator Levin extended that to cover the director of the
national terrorism center, the other national intelligence centers, the
CIA Director, the National Intelligence Council, and restated the
mandate to require national intelligence be timely, objective,
independent of political considerations, and not shaped to serve policy
considerations.
[[Page S9717]]
We are asking that the national intelligence director have
responsibilities to ensure that the appropriate officials of the U.S.
Government, including, of course, Members of Congress, have access to a
variety of intelligence assessments and analytical views; likewise,
that the national intelligence centers have similar access.
In response to the specific recommendation of your colleague, the
ranking Democrat on the Intelligence Committee, Senator Rockefeller, we
created the office of ombudsman within the national intelligence
authority to serve as an independent counselor, an independent reviewer
of analytical product, to address any problems of bias or lack of
objectivity or politicization in the intelligence community. The same
is true of national intelligence estimates, that they be provided in a
way that distinguishes between analytical judgments underlying
intelligence.
We have a very strong provision about congressional oversight. The
committee included provisions to strengthen the ability of
congressional oversight to ensure independent and timely intelligence
analysis; that the director of the counterterrorism center, for
instance, may testify and submit comments to Congress without clearance
from anyone else in the executive branch. The heads of the
counterterrorism centers must provide intelligence assessments and
certain other information to appropriate Members of Congress. Employees
are explicitly authorized to report directly to Congress any evidence
showing false statements to Congress and to an intelligence estimate.
There is a real congruence of purpose here in opening up, to the
extent allowed by our national security needs, the intelligence that is
in the possession of our Government.
I understand this amendment pushes this a step or two forward in
focusing beyond what our proposal does in authorizing the national
intelligence director to deal with classification standards to create
this board. This is the first time I have seen the amendment. I
appreciate the work that has been done on it and the purpose behind it,
and with Senator Collins, I offer to sit and reason together with our
respective colleagues, leaders in this field, who are the proponents of
the amendment, and see if we can come to some agreement that is
progressive but does not take the bill in a direction that might make
it hard to adopt everything else we want to adopt.
That is the practical last word I want to offer.
Mr. WYDEN. Mr. President, if I could take perhaps an additional 2
minutes to make a quick comment.
Mr. LIEBERMAN. I yield the floor.
Mr. WYDEN. And then one of our cosponsors, the former chairman of the
Intelligence Committee, wants to speak on behalf of the bill, as well.
Mr. President, I ask unanimous consent Senator Cornyn of Texas be
added as a cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. Mr. President, very briefly, first I express my thanks to
Senator Collins and Senator Lieberman for their help. They always go
out of their way to help me and I am very appreciative of it.
My only substantive point, because we are going to work very closely,
touches on the matter that our distinguished Chair made with respect to
the executive branch having concerns about this issue. Every executive
branch, whether it be controlled by Democrats or Republicans, will be
concerned about this issue. What troubles the four of us is, whether a
Democrat is President or a Republican is President, is that there are
employees who can take a big old stamp, mark something ``secret,'' and
then there is no independent review at all. That has been abused, in
our view, on a bipartisan basis. It has been abused by administrations
when they were run by Democrats. It has been abused when there have
been administrations run by Republicans.
What the four Senators seek to do--now five, with the gracious help
of the distinguished Senator from Texas--we seek to strike a balance
between the President and the Congress.
What I say to the distinguished chairman of the committee, who makes
a good point as to the executive branch, as the four of us talked about
this issue--Senator Lott, Senator Snowe, Senator Graham, and myself--we
felt we would give the President, the executive branch, the first word
and the last word on an issue with respect to classification. It is
possible under our bipartisan proposal for a President to have the last
word with respect to whether a document is classified. What we do,
consistent with that principle, is allow for a broad swath of
congressional involvement in between the President having the first
word and the last word.
I only say to the distinguished chair of the committee, I will work
very closely with you and Senator Lieberman. My guess is we can never
make the executive branch completely happy on this issue, whether it is
controlled by a Democrat or controlled by a Republican. It is in the
public interest now to strike a better balance with respect to how
Government documents are classified with respect to the Congress and
the President. We do that by giving the President the first word and
the last word. But without any opportunity for congressional appeal,
what we will have is what Senator Moynihan started talking about years
ago, which is that in every executive branch, whether controlled by
Democrats or Republicans, people in these agencies in the belly of some
building somewhere will keep stamping stuff secret because there is no
independent review. It is just in the political interests of those
people to do it.
I look forward to working with my colleagues. They have been very
kind.
I see the former chairman of the Intelligence Committee. My
involvement in this issue really stems from the superb work Senator
Graham has done. I hope everyone buys his book in hardback. It is a
wonderful piece of scholarship with respect to intelligence.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. GRAHAM of Florida. Mr. President, I thank my good friend Senator
Wyden for his thoughtful work on this amendment, for his always
generous personal relationship, and for his commercial reference to the
book ``Intelligence Matters.'' I will be using some of the material
from that book in my comments this afternoon as I rise to speak in
favor of the amendment which addresses our Government's dangerous
tendency toward excessive secrets.
From the very beginning of our Nation, the American people have been
concerned with the Government's attempts, almost an irresistible
attempt by any government, to hide or to fail to disclose issues that
properly should be available to the public.
President John F. Kennedy said in his first year as President:
The very word ``secrecy'' is repugnant in a free and open
society; and we are as a people inherently and historically
opposed to secret societies, to secret oaths and to secret
proceedings . . .
We decided long ago that the dangers of excessive and
unwarranted concealment of pertinent facts far outweighed the
dangers which are cited to justify it.
In a free, open, democratic society, we must always begin with the
belief that the people should have access to all of the information
which the Government holds on their behalf. The only exceptions to this
rule should be those made for necessary personal or corporate privacy
reasons, such as tax returns, and for legitimate reasons of national
security.
Now, of course, there are occasions when the national security of the
United States is best served by the withholding of certain information,
such as when we conceal the sources and methods of gathering extremely
sensitive information to protect the sources themselves. However, our
current system of classifying information is being abused to an extent
that borders on the absurd. But there is nothing comical about this
development.
In my judgment, the two key issues we are going to have to face if we
are going to overcome the many fundamental problems which are facing
our intelligence community are, first, the inadequacy of our human
intelligence to be able to confront the threats that we now face, and,
second, this issue of secrecy.
Now, I know that much of our analysis and focus will be on the
specific problems identified by various groups which have looked into
the events leading up to 9/11, including the Joint
[[Page S9718]]
House/Senate Inquiry. However, there are some other issues which are
embraced in 9/11 but which go well beyond 9/11. One of those which has
been a recurring failure of America's intelligence is the failure to
see the big issue. Why was it that our intelligence did not see the
fact that although it had stated there were precisely 550 sites where
weapons of mass destruction were being either produced or stored in
Iraq, once we got to Iraq, the number was actually zero? Can you
imagine that we have an address book of 550 sites that were supposed to
be the dangerous locations, and as soon as we occupied the country we
started knocking on 550 doors and did not find any of it? Think of the
damage that failure has meant to the United States as a fundamental
rationale for going to war in the first place and to our international
reputation.
A second example of the failure to see the big issue is the one
Senator Moynihan used as a centerpiece of his book ``Secrecy,'' and
that was the fact that our intelligence community failed to predict the
collapse of the Soviet Union. As Senator Moynihan pointed out,
indicators that the Soviet Union was on the brink of economic collapse
were available years in advance of the end of the Cold War. Yet our
intelligence community, and specifically the CIA, greatly misperceived
the strength of the Soviet economy and, therefore, did not realize that
collapse was imminent.
Unfortunately, the CIA and other intelligence agencies insisted on
classifying nonsensitive information about the state of the Soviet
economy. If this information had been disclosed to the public and to
experts outside the Government, we could have seen the CIA was working
with flawed data. That flawed data would have been subject to
challenge. And perhaps before the collapse of the Berlin Wall we would
have concluded that the Soviet Union was not internally stable in order
to maintain its position in the military, space, and scientific
competition with the United States. Had we done so, this undoubtedly
would have allowed us to develop smarter, more effective strategies
regarding the Soviets and their allies.
To give one example of that, during the period when it was widely
known by many that the Soviet Union was on the verge of collapse, but
where we were being told by our intelligence agencies, with information
not available to the general public, that in fact the Soviet Union
remained a competitive force, we were providing the resistance fighters
in Afghanistan with some of the most sophisticated military materials,
particularly items such as the Stinger missile, to use in the war
against the Soviet Union.
If we had known how close the Soviet Union was to collapse and had
thought about the consequences of having hundreds if not thousands of
pieces of some of the most lethal military equipment in the world in
the hands of those who were resisting the Soviets in Afghanistan, we
might have rethought whether that was a wise policy or whether we were
pursuing a short-term victory at the expense of arming a part of the
world which was going to be our long-term adversary.
Those are the consequences of failure to see the big picture. I
believe one of the principal reasons we repeatedly failed to see the
big picture is exactly the secrecy which we have imposed upon material,
therefore denying the opportunity for a wide range of Americans to see
the information, challenge the information, and, if it is unable to
sustain that challenge, force the information to be corrected.
One of the more recent failures that was disclosed by both the House/
Senate Intelligence Committees Joint Inquiry and the recent 9/11
Commission related to some of the evidence that there was a connection
between the Kingdom of Saudi Arabia and at least some if not all of the
terrorists inside the United States. This, in my opinion, was one of
the most significant findings of the inquiry. Its significance is that
if a foreign government is providing support to terrorists embedded
inside the United States, it contributes substantially to the ability
of those embedded operatives to maintain their anonymity while they are
planning, practicing, and executing very complex terrorist plots.
That is what happened prior to 9/11. It was our conclusion that in
fact these terrorists were not here alone, that they were receiving
that type of support. We raised the question, if it was happening
before 9/11, what is our level of confidence that it is not happening
after 9/11?
Details of our findings that led us to this chilling possibility were
included in the Joint Inquiry's final report.
Let me read from a section of that final report which was made
available to the public. But I note the brackets around these
paragraphs. Those brackets indicate that while this information was
made available to the public, it was only done so after it was
sanitized, rewritten by the agencies which had scrutinized this report,
particularly the CIA and the FBI. But here is what they would allow to
be made available to the American people:
[Through its investigation, the Joint Inquiry developed
information suggesting specific sources of foreign support
for some of the September 11 hijackers while they were in the
United States. The Joint Inquiry's review confirmed that the
intelligence community also has information, much of which
has not yet been independently verified, concerning these
potential sources of support. In their testimony, neither CIA
nor FBI officials were able to address definitively the
extent of such support for the hijackers globally or
within the United States or the extent to which such
support, if it exists, is knowing or inadvertent in
nature. Only recently, and at least in part due to the
Joint Inquiry's focus on this issue, did the FBI and CIA
strengthen their efforts to address these issues. In the
view of the Joint Inquiry, this gap in U.S. intelligence
coverage is unacceptable, given the magnitude and
immediacy of the potential risk to U.S. national security.
The intelligence community needs to address this area of
concern as aggressively and as quickly as possible.]
What happened was that even with that sanitized version of the
introduction to that section, then the intelligence community proceeded
to censor the rest of the section, page after page. Twenty-seven pages
were completely blank so that the American people were never given the
opportunity to know what we knew about the role of foreign
governments--specifically, the Kingdom of Saudi Arabia--in support of
the terrorists. Does it make America safer that this type of
information is withheld? What an absurdity.
Of course, this puts Americans at greater risk. Why was this done?
Why was this withheld from the American people? I believe it was
withheld not for national security reasons. And I might say I am joined
in that assessment by my colleague, Senator Dick Shelby, who reviewed
this information, as I had, and concluded that 95 percent of the
information which had been censored was not of a national security
nature.
Obviously, it was embarrassing, embarrassing to the CIA, to the FBI
that such an infrastructure of support could have been allowed to exist
and grow in the United States and then be used by people who killed
3,000 Americans.
I believe this information is just one example of the tendency toward
excessive secrecy, including the most recent example of that, which is
the refusal to declassify any portion of the recently released national
intelligence estimate regarding the scenario of future events in Iraq.
This report, which represents the consensus view of all our
intelligence agencies, outlines several possible scenarios for the
future of Iraq and combines the best information and analysis available
within the executive branch. While a few of the sources of information
probably should continue to be concealed, the national intelligence
estimate itself should not be. As the Congress and the American public
debate the best way to proceed in Iraq, we should have access to the
best thinking available on that subject.
The administration thus far has characterized the national
intelligence estimate on Iraq as being guesses. The administration
should act immediately to declassify the national intelligence estimate
so that the American people can determine whether it is a mature and
professional assessment of the range of choices we have in Iraq.
Our Joint Inquiry recommended that the President and the intelligence
agency review the Executive orders, the policies and procedures that
govern classification, the withholding from the American people of
information. The purpose of this review would be to ``expand access to
relevant information for federal agencies outside the intelligence
community, for state and local
[[Page S9719]]
authorities, which are critical to the fight against terrorism, and
for the American public.''
If I could comment a moment on that access to State and local
officials, there were at least five incidents within a matter of weeks
of 9/11 in which one or more of the terrorists was under the control of
a State and local law enforcement officer, generally because they had
committed a traffic offense. Yet the State and local law enforcement
officers did not have access, because of excessive secrecy, to the
information that these very people who were under their direct command
were also listed on a terrorist watch list as being people who, had
they been outside the United States, would not have been allowed to
enter. But now they are in the United States, and the people who are
the most likely to encounter them, State and local law enforcement, are
denied the information upon which they can protect the safety and
security of the American people. It is an outrage.
Two-thirds of these terrorists spent most of their time in the United
States in my State of Florida. I am not proud of that, but it happens
to be a statement of fact. I have talked with local and State law
enforcement leadership in my State and I asked: If the same thing that
occurred in the summer of 2001 were to occur in the fall of 2004, what
would the result have been? Do you know what the answer is? Exactly the
same, that our State and local law enforcement would continue to be
denied access to the information that would allow them to be of optimal
effectiveness in providing us, the American people, optimal security.
Returning to the recommendations of the 9/11 Joint Inquiry, the Joint
Inquiry called on the Director of Central Intelligence, the Attorney
General, the Secretary of Defense, the Secretary of Homeland Security,
and the Secretary of State to review and report to the House and Senate
proposals to protect against the use of the classification process as a
shield to protect agency self-interest.
What has happened in the now almost 2 years since this report was
filed? The answer is, nothing has happened. There has been no effort by
any of those agencies to present to the Congress their ideas of how we
can protect ourselves against agency self-interest.
The recommendation also called upon Congress to undertake a similar
review of classification procedures and consider in particular ``the
degree to which excessive classification has been used in the past and
the extent to which the emerging threat environment has greatly
increased the need for real-time sharing of sensitive information.''
Again, sad to say, almost 2 years since the report was filed, no
executive agencies have taken any action to review and report on their
classification procedures. This means that we in the Congress, as the
representatives of the people who are being denied this information,
must now step forward and force action.
The amendment offered this afternoon by my colleague from Oregon
would create an independent national security classification board
within the executive branch to review current classification policies
and procedures. The board would then propose more coherent, rational
standards to Congress and the President and help to ensure that new
standards are implemented.
Once the new standards are in place, the board will have access to
all documents classified for national security reasons and will have
the authority to review decisions made by employees of the executive
branch. The board will be able to recommend that the President reverse
or alter classifications with which it disagrees. The President will
have the authority to ignore the board's recommendation, but the
President will be required to notify Congress and the American public
that he or she has done so.
Early in our country's history, Patrick Henry argued:
The liberties of a people never were, nor ever will be,
secure when the transactions of their rulers may be concealed
from them.
Much more recently, Senator Moynihan concluded his book on the evils
of government secrecy with these words:
A case can be made . . . that secrecy is for losers, for
people who don't know how important information really is.
The Soviet Union realized this too late. Openness is now a
singular, and singularly American, advantage. We put it in
peril by poking along in the mode of an age now past.
We would do well to heed both the words of Patrick Henry and Senator
Patrick Moynihan. We would do well, by such heeding of these words, to
avoid the peril of excessive secrecy and its consequences, including
the consequence of designating the United States of America as losers.
We now have the opportunity to avoid that fate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. LIEBERMAN. Mr. President, I thank my friend, the Senator from
Florida, for a very informed statement.
To restate what we said to Senator Wyden, I appreciate the experience
that led our colleagues from both parties to offer this amendment. I
know I speak for Senator Collins in saying, first, we want to look at
the amendment in more detail; second, we want to work to see if we can
come up with some way to accommodate your concerns that is agreeable to
all involved.
I ask unanimous consent that this amendment be set aside to allow us
time to do the work we are about to do.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, it is my understanding that the senior
Senator from Maine, Senator Snowe, is on her way to the floor to speak
to the amendment temporarily laid aside.
Before the Senator from Florida leaves the floor, I want to thank him
for all the work he has done in this area. The Senator recently spent
about an hour with me, sharing some of his experiences as chairman of
the Senate Intelligence Committee. He has a great deal of knowledge and
expertise, and I very much appreciated his taking the time to give me
the benefit of his thoughts on intelligence reform. I am also the proud
owner of his book, which is on my bedside table right now and is very
appropriate reading as we do this debate. I thank him for his
contributions. Like Senator Lieberman, I look forward to working with
him, Senator Wyden, Senator Snowe, Senator Lott, on the amendment they
have proposed.
Mr. LIEBERMAN. Mr. President, I want to tell Senator Graham that
Senator Collins indicated to me she does have your book on her bedside
table and she finds it compelling. She does not use it to induce sleep.
I want to reassure him of that. I find it compelling as well. I join
her in thanking the Senator.
You two were way out front in recommending quite a while ago some of
the reforms that are contained in our committee's proposal. I hope the
Senator knows his work cleared a path and informed the work that the
committee did. I thank him for that.
