Congressional Record: September 29, 2004 (Senate)
Page S9873-S9916
NATIONAL INTELLIGENCE REFORM ACT OF 2004
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 2845, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 2845) to reform the intelligence community and
the intelligence and intelligence-related activities of the
U.S. Government, and for other purposes.
Pending:
Wyden Amendment No. 3704, to establish an Independent
National Security Classification Board in the executive
branch.
[...]
Ms. COLLINS. Mr. President, I want to give my colleagues an update on
an amendment that was offered yesterday. It is an amendment that was
offered by Senator Wyden on behalf of himself, Senator Snowe, Senator
Graham, and Senator Lott. I believe we have reached an agreement on a
compromise to that amendment, which deals with declassification.
Actually, I recall the Presiding Officer, Senator Cornyn, is also a
cosponsor of the amendment.
We have been able to work out an alternative to the amendment. We are
just waiting for language to come from legislative counsel. It is my
hope, and I believe the hope of Senator Lieberman, that we will be able
to dispose of that amendment this afternoon.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I thank the chairman. That is certainly
my hope. I am grateful that all the parties have come together about
this amendment. I think we have a solution that doesn't create another
board but does realize the goals that Senator Wyden and the other
bipartisan sponsors of the amendment have, to have a reasonable means
of asking for a second look, if I can put it that way, at a
classification decision made by the executive branch with regard to
congressional access to intelligence information. I am very pleased
about that and I hope we can get the language here and do it this
afternoon.
[...]
Amendment No. 3704
Mr. LIEBERMAN. Mr. President, the Senator from Oregon, Mr. Wyden,
along with a very impressive bipartisan group of cosponsors, introduced
an amendment of real import 2 days ago. We said we would try very hard
to work it out. I am quite delighted and grateful that we have worked
it out in a way that is acceptable to all involved and it accomplishes
a very significant public purpose. I thank the Senator from Oregon for
all he did to bring us to that point.
I happily yield the floor to him.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I express my appreciation to both the
distinguished Senator from Connecticut and the chairman of the
committee, Senator Collins. As I said on Monday, the Senate is well
served by having this bipartisan duo that has long practiced good
government steering us on this important piece of legislation.
The Senator from Connecticut is absolutely right; the three of us
have worked very cooperatively over the last few days. Senator Lott
also has made a valuable contribution, as well as Senator Cornyn,
Senator Dayton, and Senator Snowe. A bipartisan group of Senators has
been concerned about this issue. I believe the legislative counsel's
office will have the actual language to bring to the Senate very
shortly, probably in 10 or 15 minutes.
With the agreement of the Senator from Connecticut, I will take a few
minutes to outline what the distinguished Senator from Maine, the
Senator from Connecticut, myself, Senator Lott, and our group have
agreed to.
The ability to stamp a Government document secret is one of the most
powerful tools in our Government. The backdrop for this whole debate
was best summed up by Governor Kean, who did such a good job in
chairing the 9/11 Commission, who said three-quarters of all the
documents he saw associated with his work on the 9/11 Commission that
were classified should not have been classified. The power to stamp, in
effect, Government documents secret is now a power wielded by people in
the belly of 18 Federal agencies where they now classify more than 14
million new documents each year. This is a power that costs taxpayers
about $6.5 billion a year, and it is a power that is simply out of
control.
Senators on both sides of the aisle recognize that the system used to
classify information for national security purposes is broken. It has
been the premise of our bipartisan group that it is possible to fight
terrorism ferociously, aggressively, and at the same time make sure
that the public's right to know information the public is entitled to
is addressed.
When we look, for example, at the Senate Intelligence Committee--
Senator Lott, Senator Snowe, Senator Bayh and I serve on that
committee--had it not been for the exceptional work of Chairman Roberts
and Senator Rockefeller, much of what we tried to do with respect to
our bipartisan report on prewar intelligence would have simply been
censored. It would have all been drowned in a sea of black ink. So what
we need to do is bring some common sense to this area which is now a
hodgepodge of laws and regulations and directives. We are now in a
position to outline the changes we have agreed to in our legislation.
First--most importantly--this legislation establishes an independent
body known as the independent national security classification board
which would review existing or proposed classification of any document
or material. They would, in effect, be part of an effort for the first
time to ensure that there would be an independent board to which there
can be an appeal of classification decisions. Although right now an
executive agency has had an appeals body, it has been off limits to
congressional requests. For the first time, there will be an
independent board that will look at these classification issues and
there will be a right of the Congress to appeal a decision.
The distinguished chair of the committee was not on the floor, but I
want to express while she is here my appreciation to her. What this has
been all about from the very beginning is not a Democratic or
Republican issue.
This has been about righting the imbalance between the executive
branch and the legislative branch with respect to classification
decisions. That is what we have been able to do. It ensures that any
President's prerogatives as Commander in Chief are maintained. That is
essential with respect to national security issues.
We will also have a chance to bring some real independence to the
process of how Government documents are classified by ensuring that for
the first time there is an independent route to have a classification
decision reviewed.
That process will come after we have had a top-to-bottom review of
the standards and processes used to classify information. The chair of
the committee and I have talked about this in the past. What has been
striking is we have never even done a review of the processes that are
now used to classify
[[Page S9912]]
documents. People such as those who run the National Archives have said
that has been a factor in our having such a chaotic system.
So for the first time, again, Congress would have input into the
scope of the review that would take place with respect to how
Government documents are classified as well as the guidelines or
standards that would be issued as a result of the review.
The independent national security classification board the amendment
establishes would assume the duties of a group now known as the public
interest declassification board. The new board would be made up of nine
individuals, five of whom are appointed by the President and four of
whom are appointed by the Senate and the House leadership. This is an
effort to try to maintain a new kind of balance between the legislative
branch and the executive branch.
In order to make sure that balance is maintained over time, the new
board may recommend changes in the classification of all or portions of
documents, but the President does not have to accept them. However, the
key feature here is, if the President chooses not to accept a
recommendation of the independent national security classification
board, the President would have to submit to Congress in writing the
justification for a decision not to implement the recommendation.
To reiterate, there would be an independent body to which Congress
can appeal national security classification decisions, but at the same
time, if the President doesn't see it in the same way the independent
board does, the President, as Commander in Chief, still has the power
to exercise the constitutional prerogative as the President determines,
but for the first time it would have to be done in writing. I 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 one hand and the constitutional role of the President as Commander
in Chief. We have long needed a balance in this area, a balance between
the public's need for sound, clear-eyed analysis, and the executive's
desire to protect the Nation's legitimate security interests.
In my view, there is no room in this equation for the use of
classification to insulate officials and agencies from politics. That
was essentially the motivation that got Senator Lott and Senator Snowe
and a bipartisan group of us in the first place. We have seen this
abused again and again.
Senator Moynihan did exceptional work years ago, documenting how so
many documents have been classified largely because they were trying to
provide political cover rather than protection for this country's
national security. Senator Moynihan was a mentor to me because when I
came to the Senate, I said I was interested in making changes.
Senator Collins has been very helpful. She has also been helpful on
some of the other issues we will take up in the course of this
legislation, particularly the data mining area, where she and Senator
Lieberman have a great interest as well.
But Senator Lott, Senator Bob Graham, Senator Cornyn, Senator Snowe--
the group who worked on this issue--are very appreciative of the help
we received from the chair and the ranking minority member.
This amendment involves millions of Government documents. It involves
more than $6 billion that is spent on the classification system each
year.
I think we are starting now to lift this kind of fog of secrecy--
changing a classification system that rewards secrecy and discourages
openness. We will have the amendment actually before the Senate
probably in a few minutes. In the interest of time--I know the hour is
late and Senators have amendments--I wanted to speak about this, and I
wanted to describe what it was that we have agreed to.
Senator Collins's staff and Senator Lieberman's staff have put in a
lot of hours with us over the last few days. I am very appreciative and
particularly pleased that it would be possible to make these kinds of
changes. Senator Moynihan was right years ago when he advocated a
process that brought some real independence and a right of appeal to a
classification decision. The amendment we will offer tonight does just
that.
I see the distinguished chairman of the committee in the Chamber. I
yield the floor at this time.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, I express my appreciation to Senator
Wyden. He is always so good to work with on so many issues, and we have
enjoyed working on this one as well.
I want to recognize that Senator Lott was also very involved in the
negotiations and working with Senator Lieberman and me to modify this
amendment in a way to preserve the goal of the amendment, and yet to
address some concerns we had about creating a new board, unnecessary
bureaucracy, or some duplication.
As I indicated when Senator Wyden first offered his amendment, I
believe he is addressing a very real problem, and that is improving the
way we classify and declassify documents. I know the members of the
Intelligence Committee have been very frustrated with the process that
they went through in developing a lengthy report, only to have so much
of it redacted and to have no good way of appealing those redactions,
no good way of challenging what many members of that committee, on both
sides of the aisle, viewed as excessive secrecy or excessive
classification.
I have been concerned that the original amendment intruded
unnecessarily into the President's constitutional prerogative and
duplicated some of the provisions in our bill. I believe the changes we
have worked out so cooperatively go a very long way toward addressing
the concerns we had while advancing the goal.
Rather than creating a new board to review the classification policy,
Senator Wyden's amendment would now ensure that Congress has an
opportunity to make comments regarding the Presidential review of
classification policies already established under the Collins-Lieberman
bill, and even more importantly to the Senator who has said we need an
independent place for Congress to go to bring appeals regarding
classification decisions, the revised amendment has agreed to build
upon a board that already exists, the Public Interest Declassification
Board. The amendment would change the name of that board to the
Independent National Security Classification Board. This board was
established in 2001, but it is still being put into place.
Under the Wyden amendment, it will have specific authority to hear
appeals of classification decisions from specified congressional
committees. The board would then make a recommendation to the
President, which the President could either accept or reject. If the
President rejects the board's decision, then the President, as the
Senator indicated, would have to send a written justification of that
decision to Congress. This framework helped to address some of the
concerns we had about the original amendment.
I will note that this is not the administration's favorite amendment,
even in the revised form, but I believe we have struck a fair balance
and I am prepared to recommend that we accept the amendment once we get
it. I understand it is going to be here momentarily. There were a few
technical glitches.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. LIEBERMAN. Mr. President, again, I thank Senator Wyden. It was a
pleasure for us and our staffs to work with him and his staff. As I
said, this is a substantial accomplishment. I particularly enjoyed the
Senator's reference to the late, great Senator Pat Moynihan. I have a
vision of Pat in Heaven smiling right now. I can see that smile. He is
probably not wearing that hat that we all loved so much at the time.
The important thing here is this is a right of appeal, if you will,
regarding the President's power to classify documents. That is a right
that will exist in a limited number of Members of Congress,
interestingly and importantly, of both parties. The ultimate
beneficiaries, of course, are the American people.
Members of Congress have access to matters that are fully classified.
So this is really the public's right to know. If these Members of
Congress decide that the public has a right to know, ought to have a
right to know the content of something that has been classified, they
will have the right to
[[Page S9913]]
appeal to this board for review. It is a very finely balanced
compromise that is substantial, real, and preserves the President's
right as Commander in Chief to have the final word. So this was real
legislating in the public interest.
I thank the Senator and his cosponsors for the leadership and
persistence that brought this matter to the floor and results now in
this agreement which I think will receive unanimous consent from the
Senate.
The PRESIDING OFFICER. The Senator from Oregon is recognized.
Mr. WYDEN. Mr. President, I will be very brief. Again, I express my
appreciation to the chair and ranking minority member. The chair made
an important point with respect to the executive branch. Clearly, no
President, no executive branch is going to ever hold a rally in favor
of this kind of idea.
I think the Senator mentioned Senator Lott. Senator Lott has been
invaluable from the very beginning. He said we just have to build in--
whether it is Democrats or Republicans--a new sense of independence. I
have tried to say that there is no question in my mind, whether it was
a Democratic administration or a Republican administration, what you
are talking about are human beings who I think inherently are going to
be concerned about something coming out. So out comes the stamp and
something is marked ``classified,'' and by the time the rubberstamp
program is done, you have millions of documents classified in our
country for reasons that have nothing to do with national security.
The Senator from Maine has summed it up very well. I am sure we are
going to continue to hear from the administration as this is debated in
the Senate and in the House. I do think we have struck a balance that
ensures that by giving the President, in effect, the first word on a
classification decision, through their appointees having the ability to
classify a Government document and, in effect, the last word on a
subject, because the independent board makes the recommendation to the
President, if the President decides he doesn't want to go along with
the independent board, they get the last word by stating in writing why
they think the independent board is off base. I think that is the kind
of balance between the executive branch and the legislative branch that
we ought to have.
What pleases me is tonight this is the end of the line for a
classification system that, in effect, encourages secrecy, discourages
openness, and I am glad a bipartisan effort could have put all this
time into it. I think we will have the amendment over here quickly.
With the concurrence of the chair and the ranking minority member, it
is not my intent to ask for a recorded vote. I think we can do it on a
voice vote.
I yield the floor.
[...]
Amendment No. 3704, As Modified
Ms. COLLINS. Mr. President, on behalf of Senator Wyden, I send a
modification of the Wyden amendment No. 3704 to the desk. I ask
unanimous consent that the amendment be so modified.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
The amendment (No. 3704), as modified, is as follows:
On page 134, line 14, insert ``issue guidelines'' before
``on classification''
On page 134, strike lines 16 and 17 and insert the
following:
commonly accepted processing and access controls, in the
course of which review, the President may consider any
comments submitted by the Select Committee on Intelligence,
the Committee on Armed Services, the Committee on Foreign
Relations of the Senate, and the Permanent Select Committee
on Intelligence, the Committee on Armed Services, and the
Committee on International Relations of the House of
Representatives regarding--
(i) the scope of the review the President should undertake
in formulating the guidelines under this subparagraph; and
(ii) the substance of what guidelines should be issued.
On page 177, after line 17, add the following:
SEC. 226. CONGRESSIONAL APPEALS OF CLASSIFICATION DECISIONS.
(a) Redesignation of Public Interest Declassification Board
as Independent National Security Classification Board.--(1)
Subsection (a) of section 703 of the Public Interest
Declassification Act of 2000 (title VII of Public Law 10-567;
50 U.S.C. 435 note) is amended by striking `` `Public
Interest Declassification Board' '' and inserting ``
`Independent National Security Classification Board' ''.
(2) The heading of such section is amended to read as
follows:
``SEC. 703. INDEPENDENT NATIONAL SECURITY CLASSIFICATION
BOARD.''.
(b) Review of Classification Decisions.--
(1) In general.--The Independent National Security
Classification Board shall, pursuant to a request under
paragraph (3), review any classification decision made by an
executive agency with respect to national security
information.
(2) Access.--The Board shall have access to all documents
or other materials that are classified on the basis of
containing national security information.
(3) Requests for review.--The Board shall review, in a
timely manner, the existing or proposed classification of any
document or other material the review of which is requested
by the chairman or ranking member of--
(A) the Committee on Armed Services, the Committee on
Foreign Relations, or the Select Committee on Intelligence of
the Senate; or
(B) the Committee on Armed Services, the Committee on
International Relations, or the Permanent Select Committee on
Intelligence of the House of Representatives.
(4) Recommendations.--
(A) In general.--The Board may make recommendations to the
President regarding decisions to classify all or portions of
documents or other material for national security purposes or
to declassify all or portions of documents or other material
classified for such purposes.
(B) Implementation.--Upon receiving a recommendation from
the Board under subparagraph (A), the President shall
either--
(i) accept and implement such recommendation; or
(ii) not later than 60 days after receiving the
recommendation if the President does not accept and implement
such recommendation, transmit in writing to Congress
justification for the President's decision not to implement
such recommendation.
(5) Regulations.--The Board shall prescribe regulations to
carry out this subsection.
(6) Executive agency defined.--In this section, the term
``Executive agency'' has the meaning given that term in
section 105 of title 5, United States Code.
Ms. COLLINS. Mr. President, this modification was debated earlier
this evening. There is no further debate on the amendment as modified.
The PRESIDING OFFICER. The question is on agreeing to the amendment,
as modified.
The amendment (No. 3704), as modified, was agreed to.
[...]
