Congressional Record: July 15, 2004 (Senate)
Page S8234-S8237
By Mr. WYDEN (for himself, Mr. Lott, Mr. Graham of Florida, and
Ms. Snowe):
S. 2672. A bill to establish an Independent National Security
Classification Board in the executive branch, and for other purposes;
to the Select Committee on Intelligence.
Mr. WYDEN. Mr. President, I am pleased to be joined today by Senators
Lott, Graham of Florida, and Snowe in introducing legislation to create
an independent National Security Classification Board. We believe it is
time to clear the fog of secrecy by creating an independent board to
review current and make recommendations for new standards and
procedures for the classification of information for national security
purposes.
Our Founding Fathers believed in the idea that democracy works best
with the full disclosure of accurate information. Today, some might
find that notion quaint. But it is one that bears consideration--
because the principle of open government so dear to America's founders
is being tested today as never before. The culture of secrecy that grew
out of the Cold War has now become woven into the very fabric of our
daily lives.
Information that the American people have a right to know--indeed,
information that the American people need to know to make informed
decisions about the kind of government they want and the kind of
country this should be--is being withheld by the Federal government. It
is being buried in a virtual bunker marked ``do not enter,'' sealed off
from public view with a big red stamp--marked ``Classified.'' And too
often that big red stamp is used not to hide state secrets, but to
protect political backsides at great cost to our open and democratic
society.
A very revealing speech was delivered three weeks ago by the head of
the Information Security Office, which oversees classification and
declassification policies, Mr. William Leonard. Known
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sometimes as the ``secrecy czar,'' he complained that the
classification system for national security has lost touch with the
basics; that some agencies don't know how much information they
classify, or whether they are classifying more or less than they once
did; whether they are classifying too much or too little. He called
today's classification system ``a patchwork quilt'' that is the result
of a hodgepodge of laws, regulations and directives. ``In reality,'' he
said ``the Federal Government has so many varieties of classification
that it can make Heinz look modest . . .''
Two important reports confirm Mr. Leonard's argument that the
classification system is out of control. The reports, the forthcoming
9-11 Commission report and last week's Senate Intelligence Committee on
Iraq, show the Administration's determination to blanket the Federal
government in secrecy. Even more important than the information that is
published in these reports is the information withheld from the public
and redacted from the reports.
These reports demonstrate a serious imbalance of power between the
public and the officials who wield the ``top secret'' stamp. They raise
troubling questions about whether those who control the classification
of information for national security purposes have misused this
authority to shield officials from the glare of public accountability
and to stifle public debate about politically sensitive parts of the
war on terrorism.
This is not the first time our country has grappled with the trade-
offs between the need to protect the public and the public's need to
know. But the automatic default to secrecy rather than public
accountability is not part of our history. Scholarly studies about
which material should be classified and at what level fill libraries.
According to the late Senator Daniel Patrick Moynihan, an expert on
secrecy in government, the first real Congressional debate about
protecting national secrets occurred during consideration of the Alien
and Sedition Acts of 1798, passed to silence opposition to war with
France. ``It was,'' as Senator Moynihan wrote in Secrecy, ``our
nation's first experience with how war or the threat of war changed the
balance between private liberty versus public order, an instability
that was eerily reenacted 119 years later.'' ``Indeed, much of the
structure of secrecy now in place in the U.S. government took shape in
just under eleven 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 million secrets were created in one year
alone. In fact, only a small portion, or 1.4 percent, were 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.
One of the ``creatures'' in the classification menagerie was set free
to roam through the work of the 9-11 Commission and the Senate
Intelligence Committee's report. The American people should not be
fooled--pure bureaucracy refused to allow full public disclosure of the
decisions and materials used by the 9-11 Commission to prepare its
report. Pure bureaucracy also redacted nearly half of the Senate
Intelligence Committee's review of Intelligence on Iraq. The
``creature'' has overreached.
Since President Roosevelt issued the first national security
classification directive in 1940, the American people have often
demonstrated a high tolerance for secrecy in military and foreign
affairs, even in some cases where it has been abused. However, the
rising tide of secrecy has reached the point where it threatens to
drown our system of checks and balances, and calls out for a complete
rethinking of the system used to classify information for national
security purposes.
Today the Executive Branch exerts almost total control over what
should or should not be classified. Congress has no ability to
declassify material. There is no self-correcting mechanism in the
system. Even if Members of Congress wanted to share information with
their constituents, it's so complicated for Congress to release
information to the public that nobody's ever tried to use the
convoluted processes. 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, not to Members of Congress or the
public.
What does all of this mean in practice? It means that with the thump
of a stamp marked ``secret,'' some bureaucrat in the belly of a federal
building has prevented the families of the victims of 9-11 from knowing
exactly what happened to their loved ones. It means the American people
may never know who gave the orders dictating how prisoners at Abu
Ghraib could be treated. It means these decisions cannot be appealed,
even by Congress. It means there is no independent review of the
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 of both parties wishing to make political points can abuse
the existing classification guidelines to their advantage. I want to
change that.
President Kennedy said the time to repair the roof is when the sun is
shining. In the realm of secrecy, storm clouds are approaching. The
bureaucracies in our government that deal with secrets are by nature
cautious when it comes to protecting information pertinent to our
nation's security. They err on the side of caution and they are very
territorial about it, treating secrets as if they are assets to be
traded. This is an understandable impulse. But erring too far and too
often on the side of caution keeps a lot of information hidden that
could safely enlighten public debate. Even worse, overclassification of
information is dangerous. If agencies and bureaucracies aren't sharing
information among themselves, important clues can be missed. Their
mission to keep citizens safe can be jeopardized by classification
itself.
The tragedy of 9-11, the war on terrorism and the United States'
invasion of Iraq have offered ample opportunity to argue for
classification of just about any document on the grounds of national
security. Additionally, there are those who feel that the current
Administration took office with an unhealthy penchant for secrecy
already firmly in place. In its first two years, Bush Administration
officials made 44.5 million decisions to classify records and related
documents, according to the Information Security Oversight office, part
of the National Archives and Records Administration. This is about the
same number of classification decisions made during the last four years
of the Clinton Administration.
The Atlanta Journal reported recently that ``federal, state and local
governments are shutting down access to public records in what some
experts say is the most expansive assault on open government in the
nation's history.'' The Bush Administration has even expanded the
number of officials with the power to classify documents for purposes
of national security beyond the 13 agencies that operated under the
national security classification system to include the secretaries of
agriculture, health and human services and the EPA Administrator.
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 a balance can and must be struck between the public's need
for sound, cleareyed analysis and the Executive's desire to protect the
nation's legitimate security interests. I believe we can fight
terrorism ferociously without sacrificing personal privacy. There is no
room in this equation for the use of 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 about how to achieve such a balance.
In my view this balance can be achieved only through a broad overhaul
of the national security classification system. Legislation that I will
be introducing shortly will accomplish this through the establishment
of an Independent National Security Classification Board. The Board
would be made up of three individuals, knowledgeable in national
security classification, appointed by the President
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with the advice and consent of the Senate.
The task of the Independent Board would be to review and make
recommendations on overhauling the standards and process used in the
classification system for national security information. The Board
would submit proposed new standards and processes to both Congress and
the Executive Branch for comment and revision, and then implement the
new standards and process once they have had the opportunity to
comment. The Board would then begin to implement the new system,
reviewing and making 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 proposal assures that the public and Congress
have access to an independent Board for national security
classification matters while leaving undisturbed the Commander in
Chief's constitutional prerogative in military and foreign policy
matters through the power to appoint the Board and to veto the Board's
classification decisions.
The Founding Fathers conceived of the Federal government to serve the
American people. Sometimes that is done by keeping secrets, by securing
information that could put Americans in harm's way if it became public.
Information should be classified to protect the homeland. But when
information is withheld to protect political careers and entrenched
bureaucracies, that's not a service to the American people. It's a
perversion of a policy intended to save lives, a perversion that
weakens our democracy and could even endanger our people. It's time to
throw open the curtains and let the sun shine in on American democracy
and on the governmental process much brighter than it does today.
That's what I intend to do with my legislation. The American people
deserve no less.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2672
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 ``Independent National
Security Classification Board Act of 2004''.
SEC. 2. PURPOSE.
The purpose of this Act is to establish in the executive
branch an Independent National Security Classification
Board--
(1) to review the standards and procedures used in the
classification system for national security information;
(2) to propose and submit to Congress and the President for
comment new standards and procedures to be used in the
classification system for such information;
(3) to establish the new standards and procedures after
Congress and the President have had the opportunity to
comment; and
(4) to review, and make recommendations with respect to,
classifications of current and new information made under the
applicable classification system.
SEC. 3. INDEPENDENT NATIONAL SECURITY CLASSIFICATION BOARD.
(a) Establishment.--The Independent National Security
Classification Board (in this Act referred to as the
``Board'') is established as an independent agency in the
executive branch.
(b) Composition.--The Board shall be composed of one member
appointed by the President, one member jointly recommended by
the Majority Leader and the Minority Leader of the Senate and
appointed by the President, and one member jointly
recommended by the Speaker of the House of Representatives
and the Minority Leader of the House of Representatives and
appointed by the President, each by and with the advice and
consent of the Senate. Each member shall be knowledgeable on
classification matters.
(c) Term of Members.--Each member of the Board shall be
appointed for a term of 5 years. A member may be reappointed
for one additional 5-year term. A member whose term has
expired shall continue to serve on the Board until a
replacement has been appointed.
(d) Vacancies.--Any vacancy in the Board shall not affect
its powers, but shall be filled in the same manner as the
original appointment.
(e) Separate Office.--The Board shall have its own office
for carrying out its activities, and shall not share office
space with any element of the intelligence community or with
any other department or agency of the Federal Government.
(f) Chairman.--The Board shall select a Chairman from among
its members.
(g) Meetings.--The Board shall meet at the call of the
Chairman.
(h) Quorum.--A majority of the members of the Board shall
constitute a quorum, but a lesser number of members may hold
hearings.
(i) Availability of Information.--The decision-making
process of the Board may be classified, but the final
decisions of the Board and the reports submitted under this
Act shall be made available to the public.
(j) Initial Appointments and Meeting.--
(1) Initial appointments.--Initial appointments of members
of the Board shall be made not later than 90 days after the
date of the enactment of this Act.
(2) Initial meeting.--The Board shall hold its first
meeting not later than 30 days after the date on which all
members of the Board have been appointed.
(k) Website.--The Board shall establish a website not later
than 90 days after the date on which all members of the Board
have been appointed.
SEC. 4. DUTIES OF BOARD.
(a) Review of Classification System.--
(1) In general.--The Board shall conduct a thorough review
of the classification system for national security
information, including the policy, procedures, and practices
of the system. The Board shall recommend reforms of such
system to ensure--
(A) the protection of the national security of the United
States;
(B) the sharing of information among Government agencies;
and
(C) an open and informed public discussion of national
security issues.
(2) Scope of review.--
(A) Consultation.--The Board shall consult with the Select
Committee on Intelligence, the Committee on Armed Services,
and 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 in determining the scope of
its review of the classification system.
(B) Review.--The Board shall submit a report describing the
proposed scope of review to the President and the committees
of Congress referred to in subparagraph (A) for comment.
(C) Revisions.--Not later than 30 days after receiving the
report under subparagraph (B)--
(i) the President shall notify the Board in writing of any
revisions to such scope of review; and
(ii) each committee of Congress referred to in subparagraph
(A) may submit to the Board, in writing, any comments of the
committee on the proposed scope of review.
(b) Adoption of National Security Information
Classification System.--
(1) Authority.--The Board shall prescribe the
classification system for national security information,
which shall apply to all departments and agencies of the
United States.
(2) Findings and recommendations.--The Board shall, in
accordance with the scope of review developed under
subsection (a)(2), review the classification system for
national security information and submit to the President and
Congress its findings and recommendations for new procedures
and standards to be used in such classification system.
(3) Classification system.--Not later than 180 days after
the date on which all members of the Board have been
confirmed by the Senate, the Board shall adopt a
classification system for national security information,
incorporating any comments received from the President and
considering any comments received from Congress. Upon the
adoption of the classification system, the system shall be
used for the classification of all national security
information.
(c) Review of Classification Decisions.--
(1) In general.--The Board shall, upon its own initiative
or 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--
(A) the head or Inspector General of an Executive agency
who is an authorized holder of such document or material; or
(B) the chairman or ranking member of--
(i) the Committee on Armed Services, the Committee on
Foreign Relations, or the Select Committee on Intelligence of
the Senate; or
(ii) 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 and
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have posted on the Board's website a notification in
unclassified form of the justification for the President's
decision not to implement such recommendation.
(5) Exemption from freedom of information act.--The Board
shall not be required to make documents or materials reviewed
under this subsection available to the public under section
552 of title 5, United States Code (commonly referred to as
the Freedom of Information Act).
(6) Regulations.--The Board shall prescribe regulations to
carry out this subsection.
(7) 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.
SEC. 5. POWERS OF BOARD.
(a) Hearings.--The Board may hold such hearings, sit and
act at such times and places, take such testimony, and
receive such evidence as the Board considers advisable to
carry out this Act.
(b) Information From Federal Agencies.--The Board may
secure directly from any Federal department or agency such
information as the Board considers necessary to carry out
this Act. Upon request of the Chairman of the Board, the head
of such department or agency shall furnish such information
to the Board.
(c) Administrative Support Services.--Upon request of the
Board, the Administrator of General Services shall provide to
the Board, on a reimbursable basis, the administrative
support necessary for the Board to carry out its duties under
this Act.
(d) Postal Services.--The Board may use the United States
mails in the same manner and under the same conditions as
other departments and agencies of the Federal Government.
(e) Gifts.--The Board may accept, use, and dispose of gifts
or donations of services or property.
SEC. 6. BOARD PERSONNEL MATTERS.
(a) Executive Schedule Level IV.--Section 5315 of title 5,
United States Code, is amended by adding at the end the
following:
``Members, Independent National Security Classification
Board.''.
(b) Staff.--
(1) In general.--The Chairman of the Board may, without
regard to the civil service laws and regulations, appoint and
terminate an executive director and such other additional
personnel as may be necessary to enable the Board to perform
its duties under this Act. The employment of an executive
director shall be subject to confirmation by the Board.
(2) Compensation.--The Chairman of the Board may fix the
compensation of the executive director and other personnel
without regard to chapter 51 and subchapter III of chapter 53
of title 5, United States Code, relating to classification of
positions and General Schedule pay rates, except that the
rate of pay for the executive director and other personnel
may not exceed the rate payable for level V of the Executive
Schedule under section 5316 of such title.
(c) Detail of Government Employees.--Any employee of the
Federal Government may be detailed to the Board without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Board
$2,000,000 for fiscal year 2005, and such sums as may be
necessary thereafter.
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