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                               before the


                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                             MARCH 2, 2005


                           Serial No. 109-18


       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house


20-922                      WASHINGTON : 2005
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                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                BRIAN HIGGINS, New York
KENNY MARCHANT, Texas                ELEANOR HOLMES NORTON, District of 
LYNN A. WESTMORELAND, Georgia            Columbia
PATRICK T. McHENRY, North Carolina               ------
CHARLES W. DENT, Pennsylvania        BERNARD SANDERS, Vermont 
VIRGINIA FOXX, North Carolina            (Independent)
------ ------

                    Melissa Wojciak, Staff Director
       David Marin, Deputy Staff Director/Communications Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

Subcommittee on National Security, Emerging Threats, and International 

                CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas                DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana                  TOM LANTOS, California
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
TODD RUSSELL PLATTS, Pennsylvania    LINDA T. SANCHEZ, California
JOHN J. DUNCAN, Jr., Tennessee       C.A. DUTCH RUPPERSBERGER, Maryland
MICHAEL R. TURNER, Ohio              STEPHEN F. LYNCH, Massachusetts
JON C. PORTER, Nevada                BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania

                               Ex Officio

TOM DAVIS, Virginia                  HENRY A. WAXMAN, California
            Lawrence J. Halloran, Staff Director and Counsel
                  J. Vincent Chase, Chief Investigator
                        Robert A. Briggs, Clerk
             Andrew Su, Minority Professional Staff Member

                            C O N T E N T S

Hearing held on March 2, 2005....................................     1
Statement of:
    Ben-Veniste, Richard, Commissioner, National Commission on 
      Terrorist Attacks Upon the United States...................    88
    Blanton, Thomas, executive director, National Security 
      Archive, George Washington University; Harry A. Hammitt, 
      editor and publisher, Access Reports: Freedom of 
      Information; Sibel Edmonds, former Contract Linguist, 
      Federal Bureau of Investigation............................   109
        Blanton, Thomas..........................................   109
        Edmonds, Sibel...........................................   147
        Hammitt, Harry A.........................................   128
    Leonard, J. William, Director, Information Security Oversight 
      Office, National Archives and Records Administration; Rear 
      Admiral Christopher A. McMahon, U.S. Maritime Service, 
      Acting Director, Departmental Office of Intelligence, 
      Security and Emergency Response, Department of 
      Transportation; and Harold C. Relyea, Specialist in 
      National Government, Congressional Research Service, 
      Library of Congress........................................    44
        Leonard, J. William......................................    44
        McMahon, Rear Admiral Christopher A......................    53
        Relyea, Harold C.........................................    66
Letters, statements, etc., submitted for the record by:
    Ben-Veniste, Richard, Commissioner, National Commission on 
      Terrorist Attacks Upon the United States:
        Letters dated February 11 and March 1, 2005..............   107
        Prepared statement of....................................    93
    Blanton, Thomas, executive director, National Security 
      Archive, George Washington University, prepared statement 
      of.........................................................   114
    Edmonds, Sibel, former Contract Linguist, Federal Bureau of 
    Letters dated June 19, 2002 and August 13, 2002..............   149
        Prepared statement of....................................   186
        Report dated January 2005................................   154
    Hammitt, Harry A., editor and publisher, Access Reports: 
      Freedom of Information, prepared statement of..............   130
    Higgins, Hon. Brian, a Representative in Congress from the 
      State of New York, prepared statement of...................    42
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, prepared statement of...................     9
    Leonard, J. William, Director, Information Security Oversight 
      Office, National Archives and Records Administration, 
      prepared statement of......................................    47
    Maloney, Hon. Carolyn B., a Representative in Congress from 
      the State of New York, prepared statement of...............    33
    McMahon, Rear Admiral Christopher A., U.S. Maritime Service, 
      Acting Director, Departmental Office of Intelligence, 
      Security and Emergency Response, Department of 
      Transportation, prepared statement of......................    55
    Relyea, Harold C., Specialist in National Government, 
      Congressional Research Service, Library of Congress, 
      prepared statement of......................................    68
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut, prepared statement of............     3
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California:
        Letter dated March 1, 2005...............................    15
        Prepared statement of....................................    27



                        WEDNESDAY, MARCH 2, 2005

                  House of Representatives,
       Subcommittee on National Security, Emerging 
              Threats, and International Relations,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1 p.m., in room 
2154, Rayburn House Office Building, Hon. Christopher Shays 
(chairman of the subcommittee) presiding.
    Present: Representatives Shays, Kucinich, Maloney, Waxman, 
Marchant, Turner, Dent, Van Hollen, Higgins, and Ruppersberger.
    Staff present: Lawrence Halloran, staff director and 
counsel; J. Vincent Chast, chief investigator; R. Nicholas 
Palarino, senior policy advisor; Robert Briggs, clerk; Hagar 
Hajjar, professional intern; Andrew Su, minority professional 
staff member; and Jean Gosa, minority assistant clerk.
    Mr. Shays. A quorum being present, the Subcommittee on 
National Security, Emerging Threats, and International 
Relations hearing entitled, ``Emerging Threats, 
Overclassification and Pseudo-Classification,'' is called to 
    The cold war cult of secrecy remains largely impervious to 
the new security imperatives of the post-September 11 world. 
Overclassification is a direct threat to national security. 
Last year, more Federal officials classified more information 
and declassified less than the year before.
    In our previous hearing on official secrecy policies, the 
Department of Defense [DOD], witness estimated that fully half 
of all the data deemed ``confidential, secret or top secret'' 
by the Pentagon was needlessly or improperly withheld from 
public view. Further resisting the call to move from a need to 
know to a need to share standard, some agencies have become 
proliferators of new categories of shielded data. Legally 
ambiguous markings, like sensitive but unclassified, sensitive 
homeland security information and for official use only, create 
new bureaucratic barriers to information sharing. These pseudo-
classifications can have persistent and pernicious practical 
effects on the flow of threat information.
    Today Chairman Davis, Government Management Subcommittee 
Chairman Platts and I asked the Government Accountability 
Office [GAO], to analyze the scope and impact of these 
categories on critical information sharing. The National 
Commission on Terrorist Attacks upon the United States, 
referred to as the 9/11 Commission, concluded that ``Current 
security requirements nurture overclassification and excessive 
compartmentalization of information among agencies. Each 
agency's incentive structure opposes sharing with risks, 
criminal, civil and internal administrative sanctions, but few 
rewards for sharing information. No one has to pay the long 
term cost of overclassifying information, though these costs 
are substantial.''
    Those costs are measured in lives as well as dollars. 
Somewhere in the vast cache of data that never should have been 
classified, and may never be declassified is that tiny nugget 
of information that if shared, it could be used to detect and 
prevent the next deadly terrorist attack. Recently enacted 
reforms should help focus and coordinate disparate elements of 
the so-called intelligence community to broaden our view of 
critical threat information.
    The previously ignored, but still unfunded public interest 
declassification board has new authority to push for executive 
branch adherence to disclosure standards, particularly with 
regard to congressional committee requests. But those promising 
initiatives still confront deeply entrenched habits and 
cultures of excessive secrecy. The 9/11 Commission successfully 
worked through security barriers to access and publish the 
information they needed. But as soon as the Commission's legal 
mandate expired, heavy-handed declassification practices 
reasserted themselves. As a result, release of the final staff 
report on threats to civil aviation was delayed, and the 
version finally made public contains numerous redactions, some 
of which needlessly seek to shield information already released 
by other agencies.
    The cold war was a struggle of the industrial age. The 
global war against terrorism is being waged and must be won by 
the new rules of the information age. Data and knowledge are 
the strategic elements of power. With such a few keystrokes, 
individuals and groups can now acquire technologies and 
capabilities once the solve province of Nation States. Modern 
adaptable networks asymmetrically attack the rigid hierarchical 
structures of the past.
    In this environment, there is security in sharing, not 
hoarding information that many more people need to know. We 
asked our witnesses this afternoon in our three panels to help 
us assess the impact of current access restrictions on efforts 
to create the trusted networks and new information sharing 
pathways critical to our national security. We look forward to 
their testimony and thank them for their presence.
    At this time the Chair would recognize the ranking member 
of the subcommittee, Mr. Kucinich.
    [The prepared statement of Hon. Christopher Shays follows:]

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    Mr. Kucinich. I thank the Chair.
    Good afternoon to all the witnesses and to members of the 
committee. Mr. Chairman, I believe in addition to the problem 
that this committee brings to light about the over-use and 
misuse in the classification of Federal documents, it could be 
said that the real problem before us goes beyond that. It's not 
the quantity of materials classified and declassified, it's not 
about which words are missing or about the implausible 
justifications based upon our national security. The real and 
growing problem we must address is the reflexive secrecy 
rampant through the administration.
    The American people cannot get straight answers about the 
situation in Iraq, about the treatment of detainees at Abu 
Ghraib or at Guantanamo Bay, Cuba. The American people cannot 
get the intelligence budget of the United States, the American 
people cannot get the truth about Social Security. The American 
people have a right to know and to get the unbiased facts from 
their Government.
    Congress also has a right to know, particularly this 
oversight committee, which is charged to find waste, fraud and 
abuse. Yet even before this committee we have heard a 
Department of Defense official tell us that last August she 
believed 50 percent of all materials are mis-classified at the 
Pentagon. Some believe the number is higher.
    Instead of making information available or sharing 
information, the current administration has reversed the trend 
toward openness started under the Clinton administration. 
Instead of a presumption against classifying a document in case 
of doubt with the use of a lower level of classification when 
the appropriate level of classification was uncertain, this was 
used during the Clinton administration, the current 
administration's policy is simple: withhold the truth from the 
public through what you could call hyperclassification.
    The Bush administration has dramatically increased the 
volume of Federal materials concealed from the American people. 
The President's Executive Order 13292, issued in March 2003, 
permitted officials to classify information when there was 
doubt whether or not to do so, and allowed officials to 
classify information at the more restrictive level when there 
was a question as to the appropriate level. We now have new and 
more levels of restricted access to information, such as the 
``sensitive but unclassified'' and ``critical infrastructure 
information'' designations. Instead of utilizing the 
interagency security classification appeals panel established 
by President Clinton, where historical records were 
declassified at record rates and on a timely automated 
schedule, this administration's Executive order has delayed and 
weakened the system of automatic declassification and under-
utilized the appeals panel.
    Most tellingly, this administration didn't even include 
funds for the public interest declassification board in its 
fiscal year 2006 proposed budget. The administration's 
excessive use of classification restrictions on dissemination 
and release of documents delays in declassifying materials and 
disrespect toward open government is really a danger to our 
    It's a common assertion by this administration that we need 
to be secret to be safe. But the fact of the matter is, as has 
been stated by one of the witnesses we are going to hear from, 
we're losing protection by too much secrecy. And this climate 
of secrecy is antithetical to a democratic society. This 
climate of secrecy takes us toward a type of government which 
is not democratic, which is profoundly undemocratic, which has 
that kind of a stale, garbage-like whiff of fascism to it.
    So this is a serious matter that is up for discussion 
today. But we really need to go beyond it. Because while we're 
sitting here discussing this matter, the administration is 
moving ahead with policies, without the permission of the 
American people, spending money without the permission of the 
American people and cloaking it in a need for secrecy. And 
while they're doing it, they're tearing the Constitution to 
    [The prepared statement of Hon. Dennis J. Kucinich 





    Mr. Shays. I thank the gentleman. I agree with many of his 
    Mr. Marchant, our new vice chairman of the subcommittee, is 
recognized, if he has an opening statement.
    Mr. Marchant. Mr. Chairman, it's a privilege for me to be 
on this subcommittee with you and be a vice chairman. As a 
freshman, I'm employing the practice of listening and learning 
and will have some questions later.
    Mr. Shays. Hopefully we all will practice that. Thank you. 
It's wonderful to have you on the committee and as vice 
    Mr. Turner--I'm sorry, we did have a statement, so I'm 
sorry, Mr. Waxman.
    Mrs. Maloney, wonderful to have you on the committee and 
the Chair would recognize you.
    Mrs. Maloney. I yield to Mr. Waxman.
    Mr. Shays. Mrs. Maloney defers and yields to Mr. Waxman, 
the ranking member of the full committee. I guess that was an 
anticipation of that, Mr. Waxman.
    Mr. Waxman. Thank you, Mr. Chairman, for holding this 
hearing and for your leadership in addressing the issue of 
government secrecy. Incredibly, it seems to necessary to state 
the obvious today: the Government belongs to the people. The 
American people understand that some information must be kept 
secret to protect the public safety. But when the Government 
systematically hides information from the public, Government 
stops belonging to the people.
    Unfortunately, there have been times in our Nation's 
history when this fundamental principle of openness has come 
under attack. The Watergate era of the Nixon administration was 
one of those times. We are now living through another.
    Over the last 4 years, the executive branch has engaged in 
a systematic effort to limit the application of the laws that 
promote open government and accountability. Key open government 
laws, such as the Freedom of Information Act, the Presidential 
Records Act and the Federal Advisory Committee Act, have been 
narrowed and misconstrued. At the same time, the administration 
has greatly expanded its authority to classify documents, to 
conduct secret investigations and to curtail Congress' access 
to information.
    Last fall, I released a report entitled Secrecy in the Bush 
administration. This detailed many of these threats to the 
principle of open government. And Mr. Chairman, I would like to 
ask unanimous consent to put this report into the hearing 
record for today.
    Mr. Shays. Without objection, this report will be put into 
the record.
    [Note.--The minority report entitled, ``Secrecy in the Bush 
Administration,'' may be found in subcommittee files.]
    Mr. Waxman. Yesterday, I wrote a letter to Chairman Shays 
that described a new threat to openness in government, the 
administration's mis-use of rapidly proliferating designations, 
such as sensitive but classified, and for official use only, to 
block the release of important information. I would also ask 
unanimous consent that
this letter be made a part of today's hearing as well, Mr. 
Chairman, unanimous consent to make my letter to you part of 
the record.
    Mr. Shays. Yes, thank you, your letter will be part of the 
    [The information referred to follows:]

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    Mr. Waxman. Many of these new designations have been 
created out of thin air by the administration. They do not have 
a basis in Federal statute, and there are no criteria to guide 
their application. It appears that virtually any Federal 
employee can stamp a document ``sensitive but unclassified'' 
and there do not appear to be uniform procedures for removing 
these designations. The examples we discovered are alarming. 
The executive branch has been using these novel designations to 
withhold information that is potentially embarrassing, not to 
advance national security.
    Last year I wrote a letter to Secretary Powell that 
revealed that the State Department's annual terrorism report 
was grossly inaccurate. This Government report claimed that 
terrorist attacks reached an all-time low in 2003. In fact, 
exactly the opposite was true. Significant attacks by 
terrorists actually reached an all-time high.
    To his credit, Secretary Powell admitted that mistakes were 
made and required the issuance of a new report. Several months 
later, the inspector general prepared a report that examined 
what went wrong. The report was released to the public in one 
version. And another version, a ``sensitive but unclassified'' 
version, was sent to certain offices in Congress. My staff 
compared the two versions. They were identical except for one 
difference. The ``sensitive but unclassified'' version reported 
that the CIA played a significant role in preparing the 
erroneous report. This information was redacted in the public 
    I have a message for the administration. Admitting that the 
CIA made a mistake is not a national security secret. Another 
example involves the role that Under Secretary of State John 
Bolton played in preparing an infamous fact sheet that 
erroneously alleged that Iraq tried to import uranium from 
Niger. The State Department wrote me in September 2003 that Mr. 
Bolton ``did not play a role in the creation of this 
document.'' But a ``sensitive but unclassified'' chronology, 
which has never been released to the public, shows that 
actually Mr. Bolton did direct the preparation of the fact 
sheet and received multiple copies of the draft.
    Apparently, sensitive but unclassified is also a code word 
for embarrassing to senior officials. And here's an ironic 
example. The Department of Homeland Security used the sensitive 
but unclassified designation to withhold the identity of the 
ombudsman that the public is supposed to contact about airline 
security complaints. I suggested to Chairman Shays that this 
subcommittee should investigate the mis-use of these 
designations, and I am glad to report that he has agreed. In 
fact, we are signing letters today seeking information from 
several agencies about the way they use these new designations. 
With his support, I hope we can impose some restraints on this 
new form of government secrecy.
    There are other issues I hope we can examine today. One 
involves the process that was used to declassify important 9/11 
Commission documents. Last month, we learned about long delays 
in the declassification and release of key documents that 
called into question statements made by now-Secretary of State 
Condoleezza Rice and other senior administration officials. 
These embarrassing documents were not released until after the 
Presidential elections and 48 hours after Ms. Rice's 
confirmation as Secretary of State. Today I hope we can learn 
more about the delay in the release of these documents and 
whether politics played any role.
    Another important topic is the case of Sibel Edmonds, who 
will testify on the third panel. Ms. Edmonds joined the FBI in 
2001 as a linguist. But she was fired just a few months later 
for warning her superiors about potential espionage occurring 
with the Bureau. Last month, the Justice Department Inspector 
General released an unclassified report that vindicated Ms. 
Edmonds, finding that her core allegations were clearly 
corroborated. Yet the Justice Department has repeatedly sought 
to prevent inquiries into her case by citing secrecy concerns. 
Indeed, government lawyers even argued that her legal efforts 
to obtain redress should be thrown out of court to avoid the 
risk of disclosing sensitive information.
    Mr. Chairman, let me close by thanking you for holding this 
hearing, for investigating the problematic, sensitive but 
unclassified designation and for including Ms. Edmonds in the 
hearing. This hearing and your actions demonstrate that 
openness in government is not a partisan issue. The fact is, 
there is bipartisan concern in Congress that the pendulum is 
swinging too far toward secrecy. I look forward to the 
testimony of the witnesses today.
    [The prepared statement of Hon. Henry A. Waxman follows:]

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    Mr. Shays. I thank the gentleman for his statement and for 
the work of his staff. You have done a lot of work that you 
have reason to be very concerned about.
    At this time the Chair would recognize Mr. Turner, the 
former vice chairman of the committee, now chairman of?
    Mr. Turner. Federalism and Census. Thank you, Mr. Chairman, 
and thank you for your leadership on this issue, and for your 
assistance in my continuing on this subcommittee. This 
obviously is a very important issue. Just this week I believe 
we had a reminder of the issue of classification when we were 
all receiving information from our news media about the 
possible communication between Osama bin Ladin and Moussaoui, 
and looking to possible potential attacks on the United States. 
I think we all heard, as we looked at the news, and read the 
news accounts, that we were informed that the Homeland Security 
Department issued a classified bulletin to officials over the 
weekend about the intelligence, which spokesman Brian--I'm not 
even going to guess at that one--described as credible but not 
specific. The indulgence was obtained over the past several 
weeks, officials said.
    Clearly, we've gotten to the point where we have become 
desensitized to what is either classified or not. One of the 
dangers of overclassification is that people no longer handle 
the information sensitively. In this instance, within I believe 
a day or two of it being issued, it's national news on CNN and 
all of our newspapers, which of course means that our 
adversaries, in addition to our friends, are reading it.
    This is an important hearing that you are holding, in that 
it will assist us in identifying what really is important and 
needs to be protected information and hopefully assist us in 
keeping it classified and confidential.
    Thank you.
    Mr. Shays. I thank the gentleman for his statement. At this 
time, the Chair would recognize the gentlelady from New York 
    Mrs. Maloney. Clearly, for me, nothing highlights better 
the overclassification of government documents than the 9/11 
Commission staff report dealing with civil aviation. The 
release of this report was delayed for months beyond all 
documents of the 9/11 Commission report, and is heavily 
redacted. It is the only document that the 9/11 Commission 
members received that had one word covered in ink. Every other 
document that they received in their investigation was not 
redacted, just the civil aviation one.
    Not only is it ironic that the underlying 9/11 Commission 
report spoke to the need to move from a need to know 
environment to a need to share environment. I think it is 
absolutely an outrage that large portions and parts of this 
report are being kept from the American people, including the 
September 11 families who fought so very, very hard to get 
answers on why September 11 happened, and how we could work to 
prevent it in the future, another future attack.
    Although the 9/11 Commission staff completed its report on 
August 26, 2004, the Bush administration refused to declassify 
the findings until January 28, 2005, less than 48 hours after 
Condoleezza Rice was confirmed as Secretary of State. During 
the period between August 26th and January 28th, the Commission 
was reportedly reviewing the Commission's report to determine 
whether it contained any information that should be classified 
in the interest of national security.
    Problems with this process have been raised previously by 
the 9/11 Commission. On February 9th, the New York Times 
reported that the monograph had been turned over to the 
National Archives nearly 2 weeks before it had been heavily 
redacted. No notice was provided to me or any of the 25 Members 
of Congress who had written the Justice Department for its 
release. To say the least, the contents of the monograph were 
troubling. It states that,

    In the months before September 11, Federal aviation 
officials reviewed dozens of intelligence reports that warned 
about Osama bin Ladin and Al-Qaeda, some of which specifically 
discussed airline hijackings and suicide operations.
    Fifty-two intelligence reports from the FAA mentioned bin 
Ladin or Al-Qaeda from April to September 10, 2001. Five of the 
intelligence reports specifically mentioned Al-Qaeda's training 
or capability to conduct hijackings. And two mentioned suicide 
operations, although not connected to aviation. Despite these 
warnings, the FAA, lulled into a false sense of security and 
intelligence that indicated a real and growing threat leading 
up to 9/11, did not stimulate significant increase in security 

    This is what we know from public parts of the report. That 
day Chairman Shays and I called on the Justice Department to 
release the full, unredacted report, just like all previous 
documents of the 9/11 Commission. The delayed release, the 
ultimate timing of the release, the contents and the heavy 
redactions raise very serious concerns to me. That is why I was 
so pleased to join with the full committee ranking member, 
Henry Waxman, calling for hearings on this matter. I look very 
much forward to hearing from 9/11 Commissioner Richard Ben-
Veniste, who will be testifying on this, along with the other 
    In our letter, we raise concerns on whether the 
administration mis-used the classification process to withhold, 
possibly for political reasons, and it questions the veracity 
of statements, briefings and testimony by then National 
Security Advisory Condoleezza Rice, regarding this issue. I 
have concerns that the administration abused the classification 
process to improperly withhold the 9/11 Commission findings 
from Congress and the public, until after the November 
elections and the confirmation of Condoleezza Rice as Secretary 
of State.
    I really want to learn today what were the specific 
rationales for each redaction in the report, and were these 
redactions appropriate. I have one example that is on display 
right now, where no one can argue that it is not over-
classification. On this board you can clearly see the public 
testimony of Mike Canavan, a top FAA official before the 9/11 
Commission on May 23, 2003. On this board is the same testimony 
partially redacted. The testimony that is blacked out reads, 
``We are hearing this, this, and this from this organization. 
It was just a gain in the chatter piece, so to speak.''
    So I truly do not understand why public testimony that is 
released to the public could ever end up covered by black ink 
and officially redacted.
    With regard to our questions surrounding Secretary Rice, 
during her tenure as President Bush's national security 
advisor, she made several categorical statements asserting that 
there were never any warnings that terrorists might use 
airplanes and suicide attacks. One possibility is that 
Secretary Rice was unaware of the extensive FAA warnings when 
she appeared before the press and testified before the 9/11 
Commission. This would raise serious questions about her 
    Another possibility is that Secretary Rice knew about the 
FAA warnings but provided misleading information to the 
Commission. Neither of these possibilities would reflect well 
on Secretary Rice. Perhaps there are other, more innocent 
explanations for these seeming inconsistencies.
    I look forward to the testimony of our witnesses, and I 
hope to find out how, when and why this document was 
classified. Finally, I would like to thank Chairman Shays, in 
accommodating our request for including Sibel Edmonds as a 
witness. I would like to welcome her. She will be testifying 
publicly for the first time ever before Congress, despite the 
fact that she was wrongly fired by the FBI 3 years ago for 
trying to do her patriotic duty by raising concerns with 
possible espionage within the FBI.
    Even though the Justice Department Inspector General found 
that her claims had merit, the administration to this day has 
not fully investigated these serious issues, and amazingly, has 
still not made Ms. Edmonds whole. I hope that this situation 
will change, and I look forward to understanding how new 
designations that have no basis in Federal law or statute came 
into existence. Secrecy in government, particularly on public 
policy issues, ones from which we want to learn in order to 
prevent such actions in the future, are very, very serious, and 
I welcome the chairman and the ranking member's efforts. I'm 
glad to join them in this effort.
    Thank you.
    [The prepared statement of Hon. Carolyn B. Maloney 









    Mr. Shays. Before recognizing our other three members, who 
will have as much time as they would like, I do want to point 
out that Admiral McMahon has somewhat of a crisis meeting at 
the White House; in other words, this is not a typical meeting, 
you are being asked to be there for certain events that have 
happened today. And you will be leaving at 2:30. I just want 
the members to know that. I'm told that we will have votes at 
2, which means they'll leave the machine open, so he'll 
probably get to leave at 2:15. So I'd just like the Members to 
be aware of that, but only because that should be information 
you might want to know.
    Mr. Van Hollen, and then we'll go to Mr. Higgins and then 
to Mr. Ruppersberger.
    Mr. Van Hollen. Thank you, Mr. Chairman. I will be brief, 
just two things. First, with respect to classified information 
and use of classified information, abuse of classified 
information, there are two separate issues, and both identified 
by the 9/11 Commission report. One is the 
overcompartmentalization of legitimately classified 
information. They focus very much on the importance of sharing 
across agencies, because it doesn't do us any good in 
protecting our national security if one agency is sitting on a 
critical piece of the puzzle that when combined with another 
piece of the puzzle gives us a fuller picture.
    Then of course there is the issue that we're looking at 
today, which is the overclassification of information in 
general. I want to thank the chairman for all his leadership on 
this issue and just say, it always amazes me to have briefings 
by Secretary Rumsfeld and others in this administration, and 
frankly in past administrations, in previous jobs as well, 
where they classified as secret or top secret, and you get into 
the room and you've heard what just happened had been reported 
on CNN or Fox News or whatever it may be, or you read it in the 
newspaper the next day.
    It does breed a lot of cynicism about the abuse of 
classified information. I see it, it's just constant. Secret 
information is in the newspapers often before it's told to 
Members of Congress. I hope that we can develop a system that 
truly classifies the information that is critical to protect in 
our national security and not classify information that's an 
important part of the public debate in an exchange of views 
which is also essential to protecting our national security.
    Thank you, Mr. Chairman.
    Mr. Shays. I thank the gentleman for his statement.
    Mr. Higgins, it's wonderful to have you as part of this 
    Mr. Higgins. I have no questions at this time, Mr. 
Chairman, thank you.
    [The prepared statement of Hon. Brian Higgins follows:]

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    Mr. Shays. Thank you very much.
    With that, I will announce our witnesses. I don't think Mr. 
Ruppersberger is here.
    We have Mr. J. William Leonard, Director, Information 
Security Oversight Office, National Archives and Records 
Administration. We have Rear Admiral Christopher A. McMahon, 
Acting Director, Departmental Office of Intelligence, Security 
and Emergency Response, Department of Transportation; and Mr. 
Harold Relyea, Specialist in American National Government, 
Congressional Research Service, Library of Congress.
    Gentlemen, if you will stand up, we will swear you in right 
away. As you know, we swear in all our witnesses.
    Raising your right hand, do you solemnly swear or affirm 
that the testimony you will give before this subcommittee will 
be the truth, the whole truth and nothing but the truth?
    [Witnesses sworn.]
    Mr. Shays. Note for the record our three witnesses have 
responded in the affirmative. I ask unanimous consent that all 
members of the subcommittee be permitted to place an opening 
statement in the record and the record will remain open for a 
few days for that purpose. Without objection, so ordered.
    I ask further unanimous consent that all witnesses be 
permitted to include their written statements in the record. 
Without objection, so ordered.
    I thank the cooperation of the subcommittee, and Mr. 
Leonard, you have the floor.



    Mr. Leonard. Thank you, Mr. Chairman, and I appreciate your 
holding this hearing today and for inviting me.
    Our Nation and our Government, of course, are profoundly 
different in a post-September 11 world. Our citizens' sense of 
vulnerability has increased, as have their expectations of 
their Government to keep them safe. In each situation, 
information is crucial. On the one hand, Americans are 
concerned that information may be exploited by our country's 
adversaries to harm us. On the other hand, impediments to 
information sharing among Federal agencies and with State and 
local and private entities need to be continuously addressed in 
the interest of homeland security.
    Even more so, the free flow of information is essential if 
citizens are to be informed, and if they are to hold their 
Government accountable. In many regards, our Government is 
confronted with the twin imperatives of information sharing and 
information protection, two responsibilities that are contained 
in her intention but are not incompatible.
    I direct the Information Security Oversight Office under 
two Executive orders and applicable Presidential guidance, my 
office has substantial responsibilities with respect to 
classification of information by agencies within the executive 
branch. It is Executive Order 12958, as amended, that sets 
forth the basic framework and legal authority by which 
executive branch agencies classify national security 
    Pursuant to its Constitutional authority, in this order the 
President authorizes a limited number of officials to apply 
classification to certain national security related 
information. This authority is an essential and proven tool for 
defending our Nation. The ability to deceive and surprise the 
enemy can spell the difference between success and failure on 
the battlefield.
    Similarly, it's nearly impossible for intelligence services 
to recruit human sources who often risk their lives aiding our 
country or to obtain assistance from other countries' 
intelligence services unless such sources can be assured of 
complete and total confidentiality. Likewise, certain 
intelligence methods can only work if the adversary is unaware 
of their existence.
    Classification, of course, can be a double edged sword. 
Limitations on dissemination of information that are designed 
to deny information to the enemy on the battlefield can 
increase the risk of a lack of awareness on the part of our own 
forces, contributing to the potential for friendly fire 
incidents or other failures. Similarly, imposing strict 
compartmentalization of information obtained from human agents 
increases the risk that a Government official with access to 
other information that could cast doubt on the reliability of 
the agent would not know of the use of that agent's information 
elsewhere in the Government.
    Simply put, secrecy comes at a price. I continuously 
encourage agencies to become more successful in factoring this 
reality into the overall risk equation when making 
classification decisions.
    Classification is an important fundamental principle when 
it comes to national security. But it need not and it should 
not be an automatic first principle. In certain circumstances, 
even with respect to national security information, 
classification can run counter to our national interests. The 
decision to classify information or not is ultimately the 
prerogative of the agency original classification authorities. 
The exercise of agency prerogative to classify certain 
information has ripple effects throughout the entire executive 
branch. For example, it can serve as an impediment to sharing 
information with another agency, with State or local officials, 
or with the public, who generally need the information.
    In delegating classification authority, the President has 
established clear parameters for its use and certain burdens 
that must be satisfied, which I have detailed in my prepared 
written testimony. As I testified the last time I appeared 
before this subcommittee, it is my view that Government 
classifies too much information. Primarily, I believe because 
classifieds often becomes an automatic decision rather than an 
informed, deliberate decision.
    My official oversight responsibilities rest solely with 
classified national security information and do not extend to 
the various information access restrictions designations used 
by agencies to control some unclassified information. 
Nonetheless, as a minimum, I believe that proven effective 
attributes of the classification system can be used as 
benchmarks when evaluating any information protection 
framework. I have listed such attributes in my prepared written 
    Again, I want to thank you for inviting me here today, Mr. 
Chairman, and I would be happy to answer any questions that you 
or other Members may have.
    [The prepared statement of Mr. Leonard follows:]

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    Mr. Shays. Thank you, Mr. Leonard. Admiral McMahon, you 
need to bring that mic a little closer, sir.


    Admiral McMahon. Thank you, Mr. Chairman, for your kindness 
in realizing I have to be in the White House in the next hour.
    Mr. Chairman and members of the subcommittee, I'm Rear 
Admiral Christopher McMahon, U.S. Maritime Service, U.S. 
Department of Transportation. By way of introduction, I have 
just recently returned from Baghdad, where I have been serving 
as the transportation counselor and director of the Iraqi 
Reconstruction Management Office of Transportation at the 
American Embassy. In these positions, I have been responsible 
for Iraqi reconstruction in all modes of transportation.
    I currently serve in DOT's Office of Intelligence, Security 
and Emergency Response, where in this capacity, among other 
things, I help advise the Secretary on the Department's 
contacts with the intelligence community, including the 
Department of Homeland Security and other Federal agencies 
involved with homeland security. I am honored to be here to 
discuss with you how the Department of Transportation is 
balancing the needs for secrecy necessary to ensure homeland 
security with the public's right to know its Government's 
    At DOT, we adhere to the requirements of the Freedom of 
Information Act in making determinations about what information 
sought by the public may be disseminated and what may be 
lawfully withheld. We use FOIA not only to determine our 
responses to public information requests, but also to advise 
our employees on how they should treat the information they 
handle. In the context of protecting information vital to 
homeland security, our principal tool is the authority given to 
us and to DHS to designate information as security sensitive 
information [SSI].
    At DOT, we use this designation only to refer to 
information that Congress has mandated that we protect. We also 
have an administrative safeguarding designation for sensitive 
information that is not necessarily security related that we 
label for official use only [FOUO], which I will discuss later 
in my testimony.
    When Congress created the Department of Homeland Security 
under the Homeland Security Act of 2002, it not only 
transferred TSA from DOT to DHS, along with it the authority to 
establish SSI, but this same law gave similar authority to 
establish SSI within DOT. I wish to emphasize that SSI is not a 
security classification; hence, individuals need not have 
formal national security clearance to access SSI. What they 
must have is a need to know, and they must provide assurances 
that they understand and will comply with regulations related 
to the possession and permissible use of SSI.
    In this way, we can share with other Federal agencies, 
State, local and tribal governments, industry and other persons 
with a need to know vital information related to homeland 
security without the fear that this information may be released 
to unvetted requestors.
    When Secretary Mineta confronted the question of how SSI 
authority was to be handled within DOT, Secretary Mineta took 
five very affirmative steps. First, he delegated the authority 
to designate information as SSI to the heads of all the 
operating entities within DOT, that is the administration, as 
it pertained to their own modes of transportation, but subject 
to the guidance and direction of the director of intelligence, 
security and emergency response, and from the Department of 
Transportation's general counsel's office, who is also the 
departmental officer for FOIA.
    Second, the Secretary specifically directed that the 
Department not use this authority to evade its responsibilities 
under FOIA by stating, and I quote Secretary Mineta in part, 
``finding the right balance between protecting what needs to be 
protected and revealing what should be revealed is important. I 
expect all of us to give it the attention it deserves.''
    Third, Secretary Mineta further directed that we report to 
him regularly and review any case in which his authority is 
used to make a decision either to designate information as SSI 
or not to do so. Fourth, he asked the DOT Inspector General to 
review DOT's implementation of its SSI authority after 1 year 
to ensure that SSI designation process that we have in the 
Department is being used properly and is not being used to 
exempt information from public disclosure.
    Finally, the Secretary directed that we coordinate with the 
Department of Homeland Security on how our two departments will 
use our parallel SSI authorities. My staff is learning day in 
and day out how truly challenging that charge from Secretary 
Mineta is, and that is to find the right balance between 
protecting what needs to be protected and revealing what should 
be revealed. However, as we use this authority to protect the 
American people, I have emphasized to the heads of our 
operating administrations that they keep in mind that our 
actions must always conform to the law and with the Secretary's 
admonition that we not use this authority to restrict 
unreasonably the public's right to know how we are carrying out 
our duties.
    I want to discuss for a moment, and I've heard it mentioned 
in your statements, the designation, the administrative 
designation for sensitive information that we at DOT refer to--
yes, sir?
    Mr. Shays. Admiral, if you could try to finish up in a 
minute, because you will be leaving so quickly.
    Admiral McMahon. Sure. I want to raise a final issue, and 
that is the Department's issue on the September 11 testimony. 
Questions have been raised as to the role, whether or not FAA 
used or the Department of Transportation used its authority to 
classify information in the interest of national security. The 
answer is no, we did not. In my testimony you will see the 
explanation for that.
    I would also like to emphasize one last point, and that is, 
we have very limited SSI in place now at DOT. There are only 
two documents that are SSI that we have designated SSI, and in 
2004 and 2005, there are no documents that we designated 
secret, which I think is important. So our use of SSI and 
secret has been extremely limited in the Department of 
    I will be pleased to respond to any questions that the 
committee has.
    [The prepared statement of Admiral McMahon follows:]

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    Mr. Shays. Thank you. I'm going to go out of order. Mr. 
Relyea has graciously agreed to let questions be asked of you, 
primarily, Admiral, before you go. Candidly, since some of my 
Democratic colleagues have more questions to ask of you than we 
may have, we're going to start with them and keep that order, 
because we only have about 25 minutes for you.
    At this time the Chair would recognize Mr. Waxman.
    Mr. Waxman. Thank you very much, Mr. Chairman, for this 
courtesy, and Mr. Relyea, thank you also as well. The Admiral 
did indicate he has to leave, and I wanted to be able to ask 
him some questions.
    I know it was short notice and you're new on the job, so I 
thank you for directly addressing the declassification of the 
9/11 Commission staff report. As you know, the 9/11 Commission 
staff finished the report in August. Reviewing FAA warnings to 
airport security officials, the report found that ``the FAA had 
indeed considered the possibility that terrorists would hijack 
a plane and use it as a weapon.'' Although this report was 
finished in August, the administration didn't release it until 
January 28, 2005. They said they were reviewing it for security 
classification issues.
    This became an issue for two reasons. First, the Commission 
report undercut previous statements by Condoleezza Rice that 
nobody could have predicted that terrorists would use a 
hijacked airplane as a missile. Second, the report was withheld 
until 48 hours after she was confirmed as Secretary of State in 
January. This could have been a coincidence, or it could have 
been a mis-use of the classification system. We don't know.
    But I have a list of short questions, so let me get right 
to them. First, you said the Justice Department asked the 
Transportation Department and the FAA to review the document. 
Who at the Justice Department was in charge of this 
declassification review process?
    Admiral McMahon. Specifically, sir, I do not know the 
individual in charge. I would be happy to provide that 
information to you as appropriate.
    Mr. Waxman. Thank you very much.
    Who made the final decision on what to declassify and when?
    Admiral McMahon. Similarly, I don't have the specific 
information, but we can certainly provide that for you.
    Mr. Waxman. You said the FAA finished its review in 
September. Did the FAA recommend redacting any information?
    Admiral McMahon. The FAA, under the, the FAA does not have 
the authority now to do that. What the FAA did, as indicated in 
my opening statement, it made some recommendations to the 
Department of Justice and that was it. It was actually the 
Department of Justice that took it from there, as I understand 
    Mr. Waxman. Do you know whether there were recommendations 
for redactions?
    Admiral McMahon. I am not aware of that, sir.
    Mr. Waxman. Are there any differences in the redactions the 
FAA recommended, if they did recommend some, and the final 
redactions in January?
    Admiral McMahon. I am not aware of that, sir.
    Mr. Waxman. The 9/11 Commission staff say they wrote this 
report so it could be fully declassified, like all the others, 
and that the Justice Department allowed them to retain their 
security clearances so they could address these classification 
issues. Did the FAA ever consult and negotiate with the staff 
of the 9/11 Commission who wrote the report?
    Admiral McMahon. I am not aware of that, but I will say 
that, which I think is relevant, that the 9/11 Commission did 
note, ``The Commission found no evidence that the FAA knew or 
possessed intelligence indicating that bin Ladin, Al-Qaeda or 
Al-Qaeda affiliates or any other group were planning to hijack 
commercial planes in the United States and use them as 
weapons.'' That was in the Commission report, as I understand 
    Mr. Waxman. Did the FAA or Justice Department ever suggest 
language changes that might have avoided classification?
    Admiral McMahon. I am aware of none.
    Mr. Waxman. During this time, did the Transportation 
Department or FAA have any contact with White House officials 
or National Security Council officials regarding this 
declassification process, and if so, can you please describe 
these contacts?
    Admiral McMahon. I am aware of no such contact.
    Mr. Waxman. You said FAA recommended that Justice consult 
the Department of Homeland Security. You also said that in the 
summer of 2004, Justice also asked several other agencies to do 
this review at the same time. Was Homeland Security left off 
the original list of agencies the Justice Department originally 
    Admiral McMahon. I do not have that knowledge.
    Mr. Waxman. Do you know whether the Justice Department ever 
contacted the Department of Homeland Security?
    Admiral McMahon. No, I do not.
    Mr. Waxman. Did the FAA have any interaction with the 
Department of Homeland Security?
    Admiral McMahon. I do not believe so, sir. I'm not sure.
    Mr. Waxman. OK. I appreciate your answers to the extent you 
are able to answer these questions. If you get other 
information, would you supply it to us for the record?
    Admiral McMahon. I certainly will, sir.
    Mr. Waxman. Thank you so much. Thank you, Mr. Chairman.
    Mr. Shays. You have a very fine reputation, and it would be 
appreciated, in any of the questions that you do have knowledge 
of or gain knowledge of, that you would let our subcommittee 
know and we would definitely pass it on to Mr. Waxman.
    Admiral McMahon. Yes, sir, we will certainly do that.
    Mr. Shays. Thank you.
    The Chair at this time would recognize Mr. Marchant.
    Mr. Marchant. Admiral, how do you determine what 
information can be stamped SSI?
    Admiral McMahon. There are a number of procedures and 
guidelines that are spelled out, that are quite specific. In 
the broadest terms, as I understand it, SSI information within 
the Department of Transportation pertains to information that 
could harm the transportation system. But it's not necessarily 
a threat to national security, per se. The next designation 
above that would be secret, and that's where it's a national 
security issue.
    But more specifically, there are guidelines that we can 
provide you.
    Mr. Marchant. You mentioned just a little earlier that 
there were only a couple of items now that are marked SSI or 
marked secret. Are there two categories there?
    Admiral McMahon. There are. Since we have been given the 
authority in May 2004, and we implemented it in January, there 
have been two documents that we have designated SSI. They have 
gone through our vetting process, in other words, through the 
mode, through the Office of Intelligence Security and Emergency 
Response and through our general counsel's office, two 
    Mr. Marchant. Does the DHS have the same criteria, same 
    Admiral McMahon. As I understand it, DHS has a similar 
authority. How they handle it within the Department of Homeland 
Security, I am not aware. Our Secretary has given us guidance 
on how he wants it done and the Secretary within the Department 
of Transportation.
    Mr. Marchant. When you go up into the category of secret, 
are there are lot of those documents?
    Admiral McMahon. The secret designation, again, how you 
designate something secret, there are only five individuals 
within the Department of Transportation that have that 
authority. They have to use designations which are much more, I 
think, rigid.
    But we don't use that. Even though we have that authority, 
we don't really use it very often. In fact, in 2004 and 2005, 
there is no document that we have designated as secret. And by 
the way, one last thing on the secret, we report any secret 
document, as a check, we have an office that registers that and 
reports it to the National Archive Information Security Office. 
So there's a check on that as well.
    Mr. Marchant. Do you think that DOT has reached the right 
balance between protecting what needs to be protected and 
revealing what should be revealed?
    Admiral McMahon. Yes, sir, I do, and I think this issue 
that you mentioned is extremely important to Secretary Mineta. 
He has emphasized it, as you have seen in my opening testimony. 
The five parameters that he uses are extremely rigid. We are 
under pretty strict orders to do just that.
    Mr. Marchant. Thank you, Mr. Chairman.
    Mr. Shays. I thank the gentleman.
    At this time the Chair would recognize for 5 minutes the 
gentlelady from New York, Mrs. Maloney.
    Mrs. Maloney. Thank you for your testimony. Doesn't the 
example that I showed earlier on the poster boards that showed 
the public testimony, testimony that was given publicly, was 
being redacted? I think that example alone casts very serious 
doubts as to the process used to redact the document in the 
first place, wouldn't you agree?
    Admiral McMahon. Well, ma'am, I can't really speak to the 
document that you're referring to. I can only speak to what I'm 
familiar with within the Department of Transportation. As I 
just stated, our parameters and guidelines are extremely 
    Mrs. Maloney. I would assume that material that's already 
available to the public, testimony that's been given publicly 
and released to the public, I would assume there would be a 
guideline that public testimony that's released to the public, 
part of the public record, should not be redacted. That's just 
common sense.
    Admiral McMahon. Yes, ma'am.
    Mrs. Maloney. And your very strict guidelines.
    Admiral McMahon. And I can't really comment on it, except 
to say that again, restate what the 9/11 Commission stated that 
they found no evidence that FAA had done that or had withheld 
information, as you indicate.
    Mrs. Maloney. If you could go back and--all right, Mr. 
    Mr. Shays. What's helpful for us, Admiral, is you have 
experience in this area, so your opinion about the issue, 
whether it relates specifically to your own issue, would be 
helpful. So I mean, I realize you want to be somewhat cautious. 
But we have you here as a witness to give us your opinion about 
the concept.
    So when I looked at that document that Mrs. Maloney had up, 
it did seem absurd times 10. I would think your opinion would 
have been somewhat similar, that you could qualify it. Was 
there anything in that language that would have suggested it 
needed to be redacted, any little thing?
    Admiral McMahon. Mr. Chairman, I would have to--and I would 
be happy to offer that, but unfortunately I don't have enough 
knowledge of that particular document to really give you I 
    Mr. Shays. We were talking about that one sentence. I mean, 
if anything, it was just bad English, perhaps.
    Admiral McMahon. Sir, I would have to look at it and study 
it more carefully to give you an opinion.
    Mr. Shays. OK, well, we may have you back to do that.
    At any rate, Mrs. Maloney.
    Mrs. Maloney. Here it is, right here, did the FAA redact 
this sentence? Did they?
    Admiral McMahon. I'm not aware that the FAA did redact it, 
    Mrs. Maloney. Well, then, can you tell me who did redact 
    Admiral McMahon. I cannot provide that information.
    Mrs. Maloney. How can we find out?
    Admiral McMahon. I will certainly ask our staff to look 
into that for you, ma'am.
    Mrs. Maloney. Would you find out who redacted it and why 
they redacted it?
    Admiral McMahon. I would be very delighted to do that, 
    Mrs. Maloney. I don't see how saying, we're hearing this, 
this, this and this for this organization, it was just to gain 
a piece of chatter, I don't see how that endangers national 
security, do you?
    Admiral McMahon. Not what you're highlighting, ma'am. We'll 
provide you that information.
    Mrs. Maloney. What defense could you or anyone possibly 
give for the civil aviation document to be so heavily redacted? 
And I repeat, it was the only document that was redacted. All 
the others going to the 9/11 Commission were not redacted.
    And really what we need, Mr. Chairman, in looking at this, 
is we need a review board to look at the redactions. I thought 
the testimony of Mr. Leonard earlier, when he said the 
redactions had become almost ``automatic,'' and people were 
automatically redacting things, it's just very, very troubling. 
I'd like it answered.
    I see my time is up. But were you surprised at how long it 
took the civil aviation monograph to be released? Every other 
document had been released, and then of course, they couldn't 
release it until after the confirmation. Why did it take so 
long? Do you know why it took so much longer than all the other 
    Admiral McMahon. No, ma'am, I cannot answer that.
    Mrs. Maloney. Were you surprised to see such large segments 
of the report redacted?
    Admiral McMahon. I don't have enough specific information 
to answer the question. My staff will be in touch with yours to 
provide whatever information we can, ma'am.
    Mr. Shays. Let me just thank the gentlelady for her 
questions and say, Admiral, you said you would come back with 
some information, which I know you will.
    Admiral McMahon. Yes, Mr. Chairman.
    Mr. Shays. I think that will be very helpful to the 
    Mr. Higgins, you have technically the floor. I technically 
have, but I recognize you if you would like to yield to Mr. 
Waxman or--would you like to do that?
    Mr. Waxman. Thank you, Mr. Higgins. I wanted to ask some 
questions that Congressman Van Hollen wanted asked.
    Admiral McMahon. Yes, sir.
    Mr. Waxman. That's about the public statements made by 
Condoleezza Rice. On May 16, 2002, Ms. Rice held a press 
conference at the White House to address the question of what 
the Government knew before September 11th about the likelihood 
of a terrorist attack. She stated, ``I don't think anybody 
could have predicted that these people would try to use an 
airplane as a missile, a hijacked airplane as a missile.'' This 
was a very significant statement coming from the President's 
National Security Advisor. Presumably she would not have made 
it without thoroughly researching the claim first.
    Admiral McMahon, you were the head of intelligence and 
security for the Department of Transportation, which includes 
the Federal Aviation Administration. Your office would have 
been the logical first stop for Ms. Rice. Prior to holding her 
press conference, did Ms. Rice ever contact you or your 
predecessors to ask what the Department of Transportation, what 
the FAA knew about the possibility that terrorists might use 
hijacked airplanes and suicide attacks?
    Admiral McMahon. No, sir, she did not.
    Mr. Waxman. About 3 weeks later, on April 8, 2004, Ms. Rice 
testified before the 9/11 Commission, this was a rare event, a 
sitting National Security Advisor testifying under oath, and 
I'm sure Ms. Rice did a lot of preparation before that. Yet she 
still maintained that, ``this kind of analysis about the use of 
airplanes as weapons actually was never briefed to us.'' 
Between the time she held her press conference at the White 
House and when she testified before the 9/11 Commission, did 
Ms. Rice ever consult with you, your predecessor or anyone else 
in your office?
    Admiral McMahon. Certainly not with me, sir, and to my 
knowledge, no one at the Department of Transportation.
    Mr. Waxman. Let me ask it more broadly, then. Did anyone at 
the National Security Council consult with anyone in your 
office before Ms. Rice made either of her public statements?
    Admiral McMahon. To my knowledge, no.
    Mr. Waxman. OK. Thank you very much. Thank you, Mr. 
    Mr. Shays. Admiral, we learned in the last hearing we had, 
and I'll be happy to engage your other two colleagues in this 
question as well, that we, the estimate of overclassification 
was between 50 and 90 percent. I want each of you to tell me as 
succinctly as you can what is the negative of 
overclassification? I'll start with you, Mr. Leonard.
    Mr. Leonard. To me it's very clear, Mr. Chairman. The 
negative goes to the very integrity of the process itself. The 
thing that protects information is not the markings, it's not 
the safes, it's not the alarms on elaborate skiffs, it's 
people. We're dependent on people to exercise proper judgment 
and to be familiar with the rules and to understand them and to 
adhere to them.
    Once individuals start losing faith in the integrity of the 
process, we have an uphill road in terms of having people 
    Mr. Shays. Thank you. Admiral.
    Admiral McMahon. Sir, I think this goes back to what the 
third parameter that Secretary Mineta gave us in determining 
security sensitive information, which was finding the right 
balance between protecting what we need to protect and enabling 
the public to know how its government functions. So the 
statement overclassifying, I think the Secretary is addressing 
just that concern, let's not overclassify, let's be secure but 
    Mr. Shays. Mr. Relyea, you've been doing this kind of work 
for how long?
    Mr. Relyea. Thirty-three years.
    Mr. Shays. You're a real expert on this issue, and it's 
wonderful to have you here. We will look forward to your 
testimony when we get back from voting.
    Can you just share with me the negative, the primary 
negative of overclassification?
    Mr. Relyea. Probably there's three things. I think Mr. 
Leonard struck on the first point, that's the integrity. 
Integrity, that's the first factor. If everything was 
classified, I think it was Potter Stewart who said it, then 
nothing is classified, so the system goes to smash.
    There is the factor here of today, where the system is so 
embedded in cold war thinking that we never envisioned what the 
9/11 Commission called for, not stepping over the need to know 
to a need to share. So we----
    Mr. Shays. Can you define that difference?
    Mr. Relyea. Yes. I think it's a big change in culture. 
Those who are in the classification business, who use that as a 
tool, who manage it, who monitor it, this is a big change of 
thinking, I think, for them. Because in the past it was to keep 
things compartmentalized, not necessarily let the information 
flow too widely.
    The third factor is a very simple one which probably many 
of you on the subcommittee would be aware of in terms of your 
jurisdiction at full committee, and that's cost, efficiency and 
economy. This is costing a lot of money. You have to have the 
safes, you have to have the clearances, top secret secret 
clearance today is what, $2,500 I think, per person. It's very 
expensive. So you have costs of dollars, you have costs of 
integrity and you have ultimately cost of share.
    Mr. Shays. Thank you. In the short time I have left, I want 
to know, what is, I know all the powers that want us to 
classify, in other words, all the pressures to classify from 
bad language, to not being embarrassed to real needs and so on. 
But what I want to know is, what is the pressure to not 
overclassify? I mean, it just seems to me we don't have a 
proper balance. There is everything stacked against just having 
a balance. I'd like, maybe I'll have you start, Mr. Relyea.
    Mr. Relyea. I think you're right, if you ingrain in a 
person that their whole job is to manage something that's 
classified, it's an available tool that you don't think too 
much about, because you lean on the side of protection, which 
was certainly there in the Reagan Executive order. There's not 
much of a break. You can talk about people challenging it, I 
don't think that happens very often in the system. You can have 
an oversight body, such as Mr. Leonard has, but it's limited in 
terms of its resources, I think, and how far it can get in 
terms of stopping this type of phenomenon and how you stop it.
    Mr. Shays. Admiral.
    Admiral McMahon. Sir, I think that we at the Department of 
Transportation are certainly cognizant of the fact that DHS is 
responsible for transportation security. But that said, 
transportation security is on our mind, too. So again, I think 
we need to strike a balance between trying to do what we can do 
to protect the security of the transportation system and enable 
the public to have the right to know how its Government is 
working. Again, I think Secretary Mineta has given us extremely 
strict parameters on doing just that. The fact that we don't 
classify a lot of documents, that we have none on the secret 
level in 2004-2005 and only two security sensitive documents in 
the last several months since we've had the authority I think 
speaks to that.
    Mr. Shays. And the value of that is you certainly know how 
to protect the few that you do have.
    Admiral McMahon. Yes, sir.
    Mr. Shays. Mr. Leonard.
    Mr. Leonard. Part of the challenge is that I think the 
whole premise is set up on the basis of a false dichotomy, and 
that is, I need to protect this information, because its 
disclosure would damage national security. But there is the 
problem that often times, the withholding or the hoarding of 
the information can similarly damage the national interest. I 
don't like the word, but I'll use it anyhow, it's literally a 
cultural shift, a frame of mind that needs to occur in order to 
get that recognition that the act of withholding can be just as 
damaging if not even sometimes more damaging than the 
disclosure of information.
    Mr. Shays. Thank you. We have about 5 more minutes, Mr. Van 
Hollen, would someone check the TV? We're going to adjourn, 
Admiral, you're going to have a meeting at the White House, so 
you're not coming back. We'll start with Mr. Relyea, your 
statement, and we have some more questions.
    Thank you very much. We stand adjourned.
    Mr. Shays. Mr. Relyea, we are now back in session and we 
would love to hear your statement. Thank you very much. Mr. 
Relyea, you have the floor for your statement and thank you for 
your patience.


    Mr. Relyea. Mr. Chairman, members of the subcommittee, 
there can be little doubt at this late date that the terrorist 
attacks of September 11, 2001 have prompted rethinking and 
continuing concern about various aspects of the internal 
security, that is the homeland security, of the United States, 
not the least of which includes the public availability of 
information of potential value to terrorists for either the 
commission of their acts or for warning them of ways of their 
being detected.
    Often times it has not been clear to what extent if any an 
attempt was made to weigh citizen needs for information vis-a-
vis denying its availability to terrorists, or if thoughtful 
consideration was given to alternative limits short of total 
restriction. Recently, a December 2004 report from the Heritage 
Foundation observed, ``at the very least, such wholesale 
withdrawal of information seems arbitrary and undermines 
important values of Government openness, the development of 
electronic Government to speed the delivery and lower the costs 
of Government services and public trust.''
    A primary tool for protecting information in the post-
September 11 environment is security classification. One may 
not agree with all of its rules and requirements, but that is 
an expression of policy and procedure. Its attention to detail 
is commendable. The operative Presidential Directive, Executive 
Order 12958, as amended, for instance, defines its principal 
terms, exclusive categories of classifiable information are 
specified, as are the terms of the duration of classification 
as well as classification prohibitions and limitations. 
Classified information is required to be marked appropriately, 
along with the identity of the original classifier, the agency 
or office of origin, and a date or event for declassification.
    Authorized holders of classified information who believe 
that its protected status is improper are encouraged and 
expected to challenge that status through prescribed 
arrangements. Mandatory declassification reviews are also 
authorized to determine if protected records merit continued 
classification at their present level, a lower level or at all. 
An information security oversight office provides central 
management and oversight of the security classification 
    Not long ago, in the closing days of January, GCN Update, 
the online electronic news service of Government Computer News, 
reported that dozens of classified Homeland Security Department 
documents had been accidentally made available on a public 
Internet site for several days due to an apparent security 
glitch at the Department of Energy. Describing the contents to 
the compromised materials and the reactions to the breach, the 
account stated, ``The documents were marked for official use 
only, the lowest secret level classification.'' The documents, 
of course, were not security classified, because the marking 
cited is not authorized by Executive Order 12958.
    Interestingly, however, in view of the fact that this mis-
interpretation appeared in a story to which three reporters 
contributed, perhaps it reflects to some extent the current 
state of confusion about the origin and status of various 
information control markings which have appeared of late. 
However, as my prepared remarks indicate, such markings are not 
new. Over three decades ago, another subcommittee of the 
Committee on Government Reform, known then as the Committee on 
Government Operations, explored these markings and the 
difficulties they created. Those difficulties are again with us 
    Analyses by the Jason Program office of the Mitre Corp., 
the Heritage Foundation and the Federal Research Division of 
the Library of Congress have decried the introduction of the 
undefined sensitive but unclassified marking and other such 
labels. Assessments of the variety and management of current 
information control markings, other than those prescribed for 
security classifications, are underway at CRS and the 
Government Accountability Office. Early indications are that 
very little of the attention to detail that attends the 
security classification program is to be found in other 
information control marking activities. Key terms often lack 
definition. Vagueness exists regarding who is authorized to 
apply markings, for what reasons and for how long. Uncertainty 
prevails concerning who is authorized to remove the markings 
and for what reasons.
    Options to remedy the situation might include a 
circumscribed and particularized legislative authorization for 
some such marking or markings, or a legislative limitation or 
restriction of the use of such markings. These choices of 
course are open to discussion.
    Thank you for your attention, and I welcome your questions.
    [The prepared statement of Mr. Relyea follows:]

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    Mr. Shays. Thank you very much.
    We're just going to start over again, if any of the Members 
have questions for Mr. Leonard or Mr. Relyea. I would just ask, 
I am unclear, and I want a little bit more explanation, I have 
heard your testimony which says we have a process in place to 
know when to classify and know when not to, we have rules and 
we have a process. But what I'm not hearing is, if it's 
balanced, and if it really can work well. Because I don't think 
it's working well now. So I guess my first question is, I made 
an assumption from your testimony that it is not working well. 
Is that a correct assumption, Mr. Leonard?
    Mr. Leonard. Yes, sir.
    Mr. Shays. Mr. Relyea.
    Mr. Relyea. I think so, too.
    Mr. Shays. So the issue, I want to know, one of the 
challenges, and I say this with no reluctance, I don't think 
the House of Representatives has done the proper job of 
oversight of the administration. I actually think it hurts the 
administration. I think had we been to Iraq more often, had 
someone been in Abu Ghraib, a Member, someone would have come 
to them and said, you know, bad things are happening here, you 
need to check it out, questions would have been asked, there 
would have been a lot more focus and we could have nipped it in 
the bud. That's what I think.
    So I think that information that is needed by someone is 
never going to be seen by them. I also think that when you have 
so much information, besides the cost that you point out, Mr. 
Relyea, you end up with just so much to keep track of that it's 
just a waste of time as well as money. So I want to know what 
you think could bring balance to the system.
    Mr. Relyea. One consideration that I would offer, and Mr. 
Leonard may not appreciate my offering this, I think his 
office, his oversight unit is understaffed. I think a model 
that might be looked at, or an arrangement that might be looked 
at is not unlike the budget officers that OMB has. Perhaps 
ISOO, his unit, would benefit from having in their employ as 
their arm into the agencies some type of classification officer 
who would be more the arm of ISOO than it would be an employee 
of the agency.
    Mr. Shays. Mr. Leonard.
    Mr. Leonard. As I mentioned in my testimony, Mr. Chairman, 
fundamentally, as the current framework is set up, the decision 
to classify is an act of judgment. Like so many other things in 
life, when it comes to judgment, people sometimes do not 
exercise good judgment or don't take the time to be discerning.
    Mr. Shays. I think it goes more than that, from your 
testimony, that there's actually incentives to classify that 
may be logical based on those incentives.
    Mr. Leonard. Quite frankly, very few incentives not to 
classify. Two comments that I continually get in this area is, 
Leonard, don't you know we're at war, and we don't have time 
for your administrative niceties. The other statement that 
always drives me up a wall is, well, you know, we always want 
to error on the side of caution. I'm always dumbfounded by the 
very notion of somehow, somebody having error as part of an 
implementation strategy. It just strikes me as bizarre.
    But yet, and I understand where people are coming from. In 
Homeland Security, folks are working at absolutely, 
unbelievable ops tempos. It's been for years. I can really 
sympathize with the pressures that they're under and that 
sometimes, you know, maybe I don't have the time or the 
inclination to step back and do it right. But on the other 
hand, my reply always is, if we're ever going to get it right, 
I would like to think when we're at war is when we're going to 
get it right.
    Mr. Shays. That's a good point, but I would love to know 
what the incentives are to have it be more balanced. So just 
think about it a little longer and just let me finish by 
asking, what is the status of the Public Interest 
Declassification Board, Mr. Relyea?
    Mr. Relyea. If memory serves me correctly----
    Mr. Shays. Excuse me. It should be Mr. Leonard I should 
start with. I apologize.
    Mr. Leonard. Yes, sir. We have the Public Interest 
Declassification Board, and as you are aware, iy was extended 
by the Intel Reform Act last December. It provides for nine 
members, five appointed by the President, four by the 
congressional leadership. The President appointed his five 
members last August-September. There is one congressional 
representative appointed, the House Minority Leader appointed 
her a member. My understanding is other appointments are under 
    The board has yet to meet. The biggest obstacle we are 
encountering right now is the board was a victim of I guess 
unfortunate timing, in that it was scheduled to sunset in 
December of last year, and therefore, there were no provisions 
for it in either the 2005 or the 2006 budget. It was literally 
extended at the last minute, December of last year.
    Mr. Shays. So there's no money for them?
    Mr. Leonard. There's no money for it, but I am confident 
there are ongoing efforts right now to identify money in both 
2005 and 2006 to fund this.
    Mr. Shays. What impact can the Public Interest 
Declassification Board have on classification and 
declassification policies and practices?
    Mr. Leonard. Profound. One of the most profound is one of 
the provisions that was added as a result of the Intel Reform 
Act, and that is that the board can now hear appeals from 
committees of the Congress when there are concerns or disputes 
about the appropriateness of classification, and they can make 
a recommendation to the President as to the continued 
appropriateness of classification. I think that's a very 
profound addition to the provision.
    Mr. Shays. OK. Thank you.
    Mr. Waxman.
    Mr. Waxman. Thank you, Mr. Chairman.
    Mr. Leonard, I know you specialize in classified 
information, but I would like to get your impressions about the 
withholding of unclassified, confidential business information. 
Let's just use a hypothetical. Suppose a Government agency 
conducts an audit of a Government contract and suppose those 
auditors issue a report concluding that the contractor has 
grossly overcharged the Government for goods or services. In 
your experience, have you ever seen a case in which the 
administration has withheld as proprietary business information 
the actual amount a company has overcharged?
    Mr. Leonard. First of all, Mr. Waxman, you are right, this 
is beyond my area of expertise. But to answer your specific 
question, no, I have never encountered that.
    Mr. Waxman. Would such a withholding be appropriate, in 
your opinion?
    Mr. Leonard. I would be hard pressed to readily come up 
with a rationale.
    Mr. Waxman. Let me turn to a slightly different issue. 
Under Executive Order 12600, when there is a request for a 
document under the Freedom of Information Act, the Government 
must allow contractors to designate information in that 
document as confidential commercial information. Would you 
agree that regardless of what information a contractor believes 
should be withheld, a Government agency has an independent duty 
to make its own determination?
    Mr. Leonard. Again, beyond my area of expertise, but yes, 
my understanding would be it should be more than just an 
    Mr. Waxman. So it would be inappropriate, in your view, for 
an agency to simply abdicate its responsibility to make its own 
    Mr. Leonard. Yes, I do.
    Mr. Waxman. One last question, Mr. Leonard. If a contractor 
merely disagrees with the Government auditor's conclusion, that 
alone wouldn't be a valid reason to redact the auditor's 
findings, would it?
    Mr. Leonard. Not from my experience.
    Mr. Waxman. Mr. Relyea, do you agree with Mr. Leonard's 
answers to my questions?
    Mr. Relyea. Yes, I would tend to agree, particularly where, 
your next to last question, it strikes me that where an agency 
is just accepting what a contractor is saying is proprietary, 
it's going to create difficulties for the ultimate defense of 
that type of case, if it's an FOIA case and it is going to 
court. What does the agency say, this guy told me this is the 
answer? It's a terrible abrogation of responsibility.
    Mr. Waxman. About that first question, about not----
    Mr. Relyea. The dollar amount?
    Mr. Waxman. Yes, not giving a dollar amount where there is 
a question of overcharging. Do you think that is proprietary?
    Mr. Relyea. It's hardly proprietary information. It's 
disclosable, it seems to me.
    Mr. Waxman. OK. And you've had knowledge of this whole 
    Mr. Relyea. Of the FOIA Act, yes, I've worked with it 
extensively over the years.
    Mr. Waxman. Thank you, thank you both.
    Mr. Shays. They are both qualified experts in this issue.
    Mr. Waxman. Mr. Leonard was a little modest.
    Mr. Shays. They are both.
    Mrs. Maloney.
    Mrs. Maloney. In the interest of time, I can call them 
later or talk to them. Other people, Richard Ben-Veniste told 
me he has to leave, too.
    Mr. Shays. Sure. Are there any closing comments either of 
you would like to make?
    Mr. Relyea. I have one comment I'd like to make. As I 
mentioned in my statement, somewhere with these pseudo-
classification markings we probably are looking for some type 
of legislative solution. One I would ask you to think about is 
creating legislatively the situation where the implementation 
or use of these labels could not be accomplished using 
appropriated funds unless authorized. So you turn the situation 
around to the agencies and you say, if you're going to use 
these labels, you have to get our approval.
    Mr. Shays. These labels being?
    Mr. Relyea. Any of these pseudo markings.
    Mr. Shays. Sensitive but unclassified? Sensitive homeland 
security information, for official use only?
    Mr. Relyea. Correct. So as they come back to try to get an 
authorization to use appropriated funds to use these things, 
then you put a management platform under them. You get a common 
term, you get an understanding of how they will be used, who 
will use them, how long. It may be a way of working this 
problem through.
    Mr. Shays. Thank you very much. Mr. Leonard.
    Mr. Leonard. Yes, sir. On that point, I would make two 
observations. No. 1, both dealing with the plethora of 
sensitive but unclassified regimes, I may not be the brightest 
person around, especially if you listen to my wife, that's an 
accurate description. [Laughter.]
    But even I, of average intellect, have a hard time keeping 
track and understanding and knowing all the ins and outs of all 
the various regimes out there. It's just literally impossible 
to understand all the rules and the nuances and the difference. 
When I think of the operators out there who have to take all 
this information and compile it and assemble it and do 
something with it and disseminate it, my heart really goes out 
to them in terms of, how do they understand or how do they know 
what's right and what's wrong. My concern is that people always 
default then in uncertainty to withhold.
    The second thing is the tremendous impact this has on our 
ability to leverage information technology. The ability to 
assemble and collate and analyze and data mine and disseminate 
information and to use technology to do that is severely 
restricted by these again plethora of caveats in terms of how 
different information is handled and identified. I think that 
impact is very significant in terms of our efficiency in this 
    Mr. Shays. Great. Thank you both very much. We appreciate 
your patience with the subcommittee and obviously appreciate 
your testimony in response to our questions. Thank you.
    At this time, the Chair would welcome our second panelist, 
Mr. Richard Ben-Veniste, and thank him for his patience in 
waiting to testify. You might stay standing, because as you 
know, we swear in our witnesses.
    Please raise your right hand.
    [Witness sworn.]
    Mr. Shays. Thank you. It's wonderful to have you once again 
before our subcommittee, especially since we have taken care of 
some of your recommendations on the 9/11 Commission. Thank you 
for all your good work.
    Mr. Waxman. Mr. Chairman, I think modesty is not 
appropriate when we talk about the exemplary service that Mr. 
Ben-Veniste gave to the 9/11 Commission, and the role that you 
and Mrs. Maloney played in pushing that legislation forward to 
a good conclusion. It's something that those of us who 
supported your efforts are quite proud of.
    Mr. Shays. Thank you very much, Mr. Waxman. It was a team 
effort, and it's nice to be part of a good team.
    I would say that any time I link up with Mrs. Maloney, I 
seem to get things done. So Mr. Ben-Veniste, nice to have you 


    Mr. Ben-Veniste. Chairman Shays, members of the 
Subcommittee on National Security, thank you for the privilege 
of appearing before you today to testify on the subject of 
emerging threats, overclassification and pseudo-classification.
    I would like to address my remarks to three separate 
topics. First, the recommendations of the 9/11 Commission as 
they relate to the question of overclassification; second, the 
experience of the 9/11 Commission with respect to 
declassification of its final report; and third, the experience 
of the Commission, now former Commission, with respect to the 
staff report submitted to the administration for 
declassification. That report, entitled, ``The Four Flights and 
Civil Aviation Security,'' was submitted to the administration 
on the last day of the Commission's existence, August 21, 2004.
    Let me start with the recommendations of the 9/11 
Commission with respect to classification. All Commissioners 
understand the need to know principle and its importance. That 
principle exists for good reason: the need to protect sources 
and methods of intelligence. The Commission found, however, 
that the failure to share information was the single most 
important reason why the U.S. Government failed to detect and 
disrupt the September 11 plot.
    There were bits and pieces of critical information 
available in different parts of the Government, in the CIA, the 
FBI, and the NSA. Some of the bits were bigger than others. But 
pieces of the information were never shared and never put 
together in time to understand the September 11 plot.
    We cannot say for certain that the sharing of information 
would have succeeded in disrupting the plot. No one can. But we 
can know for certain that the failure to share information 
contributed to the Government's failure to interrupt the plot. 
The failure to share information may have cost lives. We paid a 
terrible price on September 11th because too much information 
was kept secret or otherwise not shared.
    Within the intelligence community, there are two basic 
reasons why information is not shared. First, the intelligence 
community is a collection of fiefdoms, 15 separate agencies. 
They have separate cultures. They desire to protect their own 
turf. They distrust the ability of their counterparts to 
protect information and they design their computers so that 
they cannot transmit data easily from one agency to another.
    Second, information is not shared because of the need to 
know principle. I want to underscore again, all Commissioners 
understood the importance of protecting sources and methods. 
But the need to know principle also results in too much 
classification and too much compartmentalization of 
information. Not only do we end up keeping secrets from the 
enemy, but we end up keeping secrets from ourselves. Timely 
information does not get to the analyst and to the policymaker. 
Important information is denied the American people.
    Mr. Chairman, the chief reason the 9/11 Commission 
recommended the creation of a director of national intelligence 
was so that someone could smash the stovepipes in order to 
demand the sharing of information and force cooperation across 
the intelligence community. We want one individual in charge of 
information technology to unclog the arteries of information 
sharing across the intelligence community. We want one 
individual in charge of security rules and one set of rules for 
security, so that as much information as possible flows to 
analysts, policymakers and those on the front lines with 
security responsibilities.
    We want to make sure that the President gets the 
information he needs to do the job, and so does the border 
inspector and so does the cop on the beat. Information has to 
flow more freely. Much more information needs to be 
declassified. A great deal of information should never be 
classified at all.
    Mr. Chairman, my personal view is that an unconscionable 
culture of secrecy has grown up in our Nation since the cold 
war. Secrecy has often acted as the handmaiden of complacency, 
arrogance and incompetence. Senator Pat Moynihan, a passionate 
opponent of unnecessary secrecy in Government, called for the 
creation of a counter-culture of openness, a climate which 
simply assumes that secrecy is not the starting place. It is 
time we heeded that call.
    The Nazi War Crimes Disclosure Act, signed by President 
Clinton in 1998, created an interagency working group to 
implement the act's mandate of declassifying documents relating 
to World War II war crimes and their perpetrators, still kept 
secret by our Government. As one of three non-governmental 
members of the IWG appointed by President Clinton, I have had 
direct experience with the difficulties of getting public 
release of records stamped secret. So far, over 8 million pages 
of previously classified documents have been released. National 
security has not been jeopardized. Yet but for this act, these 
records would still be secret.
    Recently, despite the fact that relevant records are in 
some cases more than 50 years old, the CIA balked at full 
compliance with the act, causing a delay of more than a year in 
the IWG's work. Finally, to break the impasse, the IWG had to 
seek congressional intervention. The act's authors, Senator 
Mike DeWine and Representative Carolyn Maloney, rejected the 
CIA's argument for withholding important documents in a meeting 
with CIA and IWG officials. Ultimately the CIA abandoned its 
opposition and has now promised to comply.
    The Senate recently passed a bill authorizing a 2-year 
extension of the IWG, which is scheduled to expire at the end 
of this month. The House has not yet acted.
    Let me return to the Commission's experience with 
declassification. Mr. Chairman, the 9/11 Commission, had many 
challenges in gaining access to highly classified and sensitive 
material it needed to conduct its investigation and complete 
its work. We had a number of differences with the executive 
branch on questions of access. You are familiar with many of 
them, and I will not recount them in detail. Suffice it to say, 
with strong support from the American public, and from many 
Members of Congress, the Commission eventually gained access to 
documents and witnesses it needed to conduct its work.
    The Commission has had similar challenges in the 
declassification review process. We saw it as our obligation to 
make as much information available to the American public in as 
timely a fashion as possible. Within the administration, there 
are different voices. Clearly, some individuals and agencies 
wanted to block the release of material. Because our bipartisan 
Commission spoke with a consistently unanimous voice on the 
issue of transparency, we were able to overcome those 
objections and move forward.
    Beginning with the Commission staff statements, we 
developed a process where a White House designated point of 
contact coordinated the review and declassification of the 
Commission's written product. Eventually, our point of contact 
became Dan Levin, then at the Justice Department, who did an 
exemplary job. He kept the agencies on tight deadlines, and 
worked with us to solve problems and keep the process on track. 
Lawyers from the White House Counsel's office also worked hard 
to solve issues in the pre-publication review process. Solving 
problems in most cases meant modest word changes and minor 
massaging of the text.
    The staff statements were in large measure the building 
blocks for the final report. The process we established for 
declassification of the staff statements helped us immensely in 
the declassification review of the Commission's final report.
    We are very proud to say that the final report of the 
Commission was issued without a single redaction. There was not 
a single paragraph, not a single sentence blacked out from what 
we believed we needed to say to tell the full story of 
September 11 to the American public. We commend the 
administration for recognizing that a critical component for 
enhancing national security was to tell the story of September 
11 completely and credibly. The 9/11 Commission report without 
redactions helped to win the public's interest and the public's 
confidence. The integrity of the report helped our Government 
and Nation move forward with the reform bill signed into law by 
the President last December.
    Let me address the staff report on the four flights and the 
civil aviation issue of civil aviation security. The Commission 
also had good experience with the administration in the 
completion of two staff reports on terrorist finance and 
terrorist travel that were issued without redactions on the 
last day of the Commission's existence, August 21, 2004. On the 
last day of its existence, the Commission also submitted its 
third and final staff report to the administration for 
declassification review. That staff report was entitled, ``The 
Four Flights and Civil Aviation Security.''
    As in the case of the other two reports, it provides a 
wealth of additional detail in support of the facts and 
conclusions in the Commission's final report. As the 
Commission's general counsel made clear to the administration 
at the time of the staff report's submission, he and several 
staff retained their security clearances even after the end of 
the life of the Commission. Thus, in our view, staff still 
should have been able to work with the administration to 
address any concerns about classification in a mutually 
satisfactory manner, so that this staff report, like the two 
previous staff reports, could be issued without redactions.
    As this process had worked so well previously, we did not 
anticipate that it would not be utilized with respect to the 
final report. We cannot say with certainty why the 
declassification review of this last staff report took so long 
and why the outcome was so unsatisfactory. Part of the answer 
is that the administration decided it could no longer negotiate 
with former Commission staff, including the office of the staff 
report, because they became private citizens after August 21st. 
The administration refused to engage former Commission staff or 
commissioners in dialog about the declassification process. In 
the absence of a dialog and pressure from an existing 
commission, the declassification process took an inordinate 
amount of time and produced an unsatisfactory result.
    What we find especially troubling about the redactions in 
this last staff report is that most of them relate to material 
known as sensitive security information [SSI], under the 
control of the Federal Aviation Administration before September 
11 and under the control of the Transportation Security 
Administration today. There is little material in this last 
staff report from the intelligence community. So we have the 
remarkable situation that the Nation's most highly classified 
secrets, those that relate to NSA intercepts and covert action, 
and those that go into the President's daily brief, got 
declassified and put in a public report, read now by millions 
of people.
    In contrast, far less sensitive material in this last staff 
report got blacked out or replaced with blank pages. Indeed, 
one redaction deletes a sentence from public testimony in a 
hearing before the 9/11 Commission. Some of the redactions, 
that's at page 56, if you care to check that monograph. Some of 
the redactions relate to the performance of airport security 
checkpoints and equipment before September 11. We believe that 
the public needs to know what the Commission staff wrote about 
checkpoint performance. Some of the redactions relate to 
security warnings associated with FAA notices to the airlines 
leading up to September 11. We believe the public needs to know 
the nature of those warnings.
    Some of the redactions relate to a description of the FAA's 
no-fly list and criticism of how it was administered. We 
believe the public needs to know the nature of that criticism. 
We do not believe these redactions are justified, because they 
concern a civil aviation system that no longer exists. That 
system is gone forever. We see no public purpose served in 
keeping its flaws hidden. Those flaws certainly were apparent 
to the hijackers. The American people should know them in full 
as well.
    These redactions are a disservice to the September 11 
families, to the Commission and to the Nation. They deprive the 
public of the information it deserves. They stoke the fires of 
public cynicism. Redactions feed conspiracy theories and 
undermine confidence. This is the very reason why we employed 
our open hearings, that we were transparent not only in our 
staff reports, but in talking about what was in them publicly. 
We wanted to avoid the mistakes of past commissions, where 
conspiracy theories grew up and still persist.
    So we tried to be as transparent as possible in doing our 
work. Redactions inevitably lead to questions. What won't our 
leaders tell us? What won't they allow us to know? Redactions 
serve neither the public interest nor the cause of truth.
    Mr. Chairman, let me conclude by saying that the Public 
Discourse Project, the not-for-profit organization of which of 
the September 11 commissioners is a member, has offered a 
simple and constructive proposal with respect to this last 
staff report. If the administration were willing to meet with 
former Commission staff, including those who drafted this 
report, we're confident that a report without redactions could 
be reproduced in short order. Such a proposal was made to the 
White House in writing, and to date it has not been accepted.
    Such a report with integrity and credibility is exactly the 
kind of report that the American Government should produce and 
the kind of report that the American public deserves.
    Thank you very much, and thank you for your kind remarks. I 
would be pleased to answer any questions you may have.
    [The prepared statement of Mr. Ben-Veniste follows:]

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    Mr. Shays. Mr. Ben-Veniste, thank you very much. We are 
going to start out with Mr. Waxman.
    Mr. Waxman. Mr. Ben-Veniste, thank you for your excellent 
statement here today and again, for your exemplary service on 
the 9/11 Commission.
    I would like to start with the process the administration 
went through to declassify the final 9/11 Commission staff 
report. Your testimony is that the administration refused to 
consult with 9/11 Commission staff about the redactions, that 
it took an inordinate amount of time and that it produced an 
unsatisfactory result.
    Let me start with the failure to work with the September 11 
staff. The administration allowed September 11 staff to keep 
their security clearance, isn't that correct?
    Mr. Ben-Veniste. Yes, some of those clearances are kept for 
other reasons and had been in existence prior to the creation 
of the Commission.
    Mr. Waxman. So let me get a clarification. If the 
administration permitted them to retain their security 
clearances, why does it matter whether they were employees or 
not? Why did the administration refuse to consult them about 
these redactions?
    Mr. Ben-Veniste. In my view, there is no rationale in that 
    Mr. Waxman. Well, that's pretty straight-forward.
    Mr. Ben-Veniste. I try to be, Mr. Waxman.
    Mr. Waxman. On the timing question, you may have heard 
Admiral McMahon in our first panel, the head of security and 
intelligence for the Transportation Department, say that the 
FAA actually completed its review in September. Did that 
surprise you?
    Mr. Ben-Veniste. Yes, it did, sir.
    Mr. Waxman. Do you have any information about why the 
report was delayed from September until January?
    Mr. Ben-Veniste. I do not.
    Mr. Waxman. Although this hearing has produced some 
information, we now have more new questions than answers. I 
think we will have to pursue this issue further. Who do you 
recommend the committee talk to for additional information 
about this declassification process? Officials at the White 
House and the Justice Department?
    Mr. Ben-Veniste. Yes, Mr. Waxman, I think the three areas 
are the TSA, the Justice Department and White House counsel's 
    Mr. Waxman. Are there any specific documents you believe 
the committee should specifically request?
    Mr. Ben-Veniste. There are memoranda discussing why this 
material has been redacted, why it has taken so long. Clearly 
there has been substantial public interest, by the New York 
Times and other important publications. And of course, through 
a hearing like this, which generates appropriate additional 
public interest. There should be some traffic among the 
agencies to ask the logical question of what the heck took so 
long and why.
    Mr. Waxman. Mr. Chairman, I think what Mr. Ben-Veniste 
suggests makes a lot of sense. I would like to propose that the 
subcommittee interview these people and request these 
documents. We can discuss this further.
    Mr. Shays. The committee would be happy to do that, and we 
would be happy to work with your staff to have that happen.
    Mr. Waxman. Thank you.
    Commissioner Ben-Veniste, Condoleezza Rice testified before 
the 9/11 Commission on April 8, 2004.
    Mr. Ben-Veniste. I remember that.
    Mr. Waxman. I would like to ask you about the circumstances 
surrounding her testimony. First, I remember that the White 
House did not want to allow her to testify. They were very 
opposed to her appearing before the Commission under oath. If I 
remember correctly, the Commission's time with Ms. Rice was 
very truncated. I wonder if you would be able to describe for 
us the background on that, what was happening behind the 
    Mr. Ben-Veniste. Well, I can only talk about what was 
happening behind our scene. Obviously we felt that Dr. Rice's 
testimony would be very important. You may recall that Dr. Rice 
had characterized certain elements of what became her testimony 
in public statements in various venues prior to the time that 
she testified. We felt that it was more than appropriate that 
Dr. Rice provide her insights and recommendations to us in a 
public forum, since this was the purpose of the 9/11 Commission 
and she was an integral part of the history of what occurred 
prior to September 11. So I believe it was on the basis of the 
unanimous demand by this bipartisan commission that Dr. Rice 
appeared publicly before us, under oath, as other witnesses had 
appeared, to provide an answer to those questions.
    Now, as it turned out, her testimony was scheduled for the 
morning of the same day during which we had already committed 
to question President Clinton. So when you say truncated, I 
suppose that's what you mean. I had all of 16 minutes to 
question. I would have appreciated more time, but we made do 
with what we had.
    Mr. Waxman. So you didn't feel that you had a satisfactory 
amount of time to pursue all the issues you wanted to raise 
with her?
    Mr. Ben-Veniste. I would have had more questions. And I 
probably would have been more considerate of the length of her 
answers, had there been more time.
    Mr. Waxman. Good point. Her testimony came 3 weeks after 
she held a press conference at the White House. There she said, 
``I don't think anybody could have predicted that these people 
would try to use an airplane as a missile, a hijacked airplane 
as a missile.'' But the 9/11 Commission staff report stated 
that the FAA had indeed considered the possibility that 
terrorists would hijack a plane and use it as a weapon.
    Given the Commission's findings, were you concerned that 
perhaps her statements were not based on a thorough review of 
the subject?
    Mr. Ben-Veniste. Well, it's not just the FAA, Mr. Waxman, 
but within the intelligence community as we had pointed out 
repeatedly in public hearings and certainly in our final report 
in various portions of the report, the intelligence community 
was aware that on perhaps 10 separate occasions involving 
various plots, some of them interrupted in various stages of 
preparation, that terrorists were planning to use planes as 
weapons. One such plot involved crashing a plane into CIA 
headquarters. Another plot involved crashing a plane into the 
Eiffel Tower. We know that someone crashed a plane onto the 
White House lawn.
    This was not something which required anybody to do a great 
deal of research on. It seemed to us at the time, particularly 
one familiar with the intelligence apparatus of the United 
States. I can point to the fact that just prior to September 
11, in an overseas conference in Italy we took measures to 
protect against the use of suicide aircraft flying into 
buildings at that conference, which of course President Bush 
    Mr. Waxman. When she testified before your Commission, 
however, she sort of backed off her previous statement and 
said, this kind of analysis about the use of airplanes as 
weapons actually was never briefed to us. Were you surprised 
that she still hadn't been briefed on these FAA warnings by 
April 2004, 2\1/2\ years after the September 11th attacks?
    Mr. Ben-Veniste. I was disappointed, Mr. Waxman. I have a 
very high threshold for surprise, having operated here in the 
Nation's Capital for many decades now.
    Mr. Waxman. She was a National Security Advisor, it was her 
job to get all the information so she could present it to the 
President. She had others telling her there was a great deal of 
urgency, particularly Richard Clarke, that there was a great 
deal of urgency about Al-Qaeda. You said all these CIA reports 
and FAA reports were being issued. Yet she wasn't being briefed 
on it.
    Mr. Ben-Veniste. In our report, we point out that Dr. Rice 
viewed her function as National Security Advisor in a way 
somewhat differently than her predecessor, Sandy Berger, in 
terms of her responsibility for the domestic threats posed by 
terrorists. Perhaps the next time you have the opportunity to 
question Dr. Rice, you might ask her about that.
    Mr. Waxman. She may have viewed her role differently, but 
she made all the public statements on behalf of the 
administration, pretty much suggesting that she had this very 
clear role of developing the policy.
    I thank you for your answers to these questions. Thank you, 
Mr. Chairman.
    Mr. Shays. I thank the gentleman for his questions and for 
your responses.
    I think one of the important points of the 9/11 Commission 
was a very clear finding that there were breakdowns in the 
previous administration, there were breakdowns in the present 
administration. Had either administration done better or 
Congress, or had the intelligence community done its better 
job, any one of those doing better might have changed the 
outcome. Do you think that's an unfair analysis?
    Mr. Ben-Veniste. I think that there is a mistake in 
apportioning responsibility in that sort of equivalence. The 
agencies and individuals who had greater responsibilities, 
certainly for protecting the homeland. Obviously when you make 
a generalization, it does a disservice to some and is more 
generous to others.
    Mr. Shays. When Mr. Clarke appeared before our subcommittee 
behind closed doors, it was one of the most shocking 
experiences I had had. It was before September 11th, and we had 
by then had I think about 10 hearings on the terrorist threat, 
and we were now meeting with the terrorist czar. We asked him 
what our strategy was to deal with the terrorist threat and he 
said, we don't have any strategy.
    We were so dumbfounded, his basic response was, we know who 
the bad guys are and we go after them. We were so surprised by 
it that the subcommittee wrote him a letter, with his response. 
And we were so surprised by it that we wrote Condoleezza Rice a 
letter and said, don't hire the guy, when she took over. But we 
also told Condoleezza Rice that there was a terrorist threat 
out there that she needed to deal with, and we don't think they 
responded to that, either.
    I would like to know what you think gives us a culture, a 
counterculture of openness. What do you think does that? It 
obviously starts with the White House. But what are things 
    Mr. Ben-Veniste. It doesn't seem to be coming from the 
White House, so when we say, where does it start, I think first 
you identify what the problem is and the problem is that for 
decades this culture has existed. But for exceptions like the 
Nazi War Crimes Disclosure Act, which mandates specific 
declassification, there is no consequence, essentially, to 
those who unnecessarily withhold and classify materials that 
are withheld from public inspection.
    So the result of that is more and more classification, more 
and more secrecy, less and less openness. Unless that trend is 
reversed, if the leadership is not coming from the 
administration then it's got to come from the Congress. The 
press is very happy to support, I'm quite sure, efforts toward 
openness. The spirit that Senator Pat Moynihan was talking 
about has not yet taken hold. I think legislation is necessary, 
the creation of ombudsmen or classification authorities within 
each of the agencies that classifies material would be a step 
in the right direction.
    There are consequences for making mistakes and releasing 
information. There don't seem to be any consequences to 
withholding information that should be available to the public.
    Mr. Shays. What department did you find the most reluctant 
or the most secretive and what did you find, well, which had 
the best culture for openness and which had the worst?
    Mr. Ben-Veniste. You know, I don't know--do you mean with 
respect to the 9/11 Commission?
    Mr. Shays. Yes, I guess so. In other words, when my staff 
has looked at the Transportation Department, for the most part 
they think they have a pretty good policy and practice, for the 
most part.
    Mr. Ben-Veniste. Part of that depends on making the 
distinction between who talks the talk and who walks the walk, 
Mr. Chairman. People may make very soothing noises about 
cooperation and releasing material and providing them. But 
until you get down in the weeds and see what's actually 
    Mr. Shays. Well, are you capable of answering the question 
of, did you have enough interaction with enough agencies to 
find out anything? Usually you would say, you know, these guys 
are being a lot more cooperative than this group.
    Mr. Ben-Veniste. We found that the FBI was particularly 
cooperative, that FBI Director Mueller's leadership was much 
appreciated. And other places we had to employ a blowtorch and 
a pair of pliers.
    Mr. Shays. Thank you. That's helpful.
    Mrs. Maloney.
    Mrs. Maloney. I just would like to join with my colleagues 
in congratulating you on the extraordinary job you and the 
other commissioners did with the 9/11 Commission report. Really 
one of my happiest days was the day the President signed the 
intelligence bill into law. It would not have happened without 
your dedicated commitment. Also your work on the Nazi War 
Crimes Disclosure Act, which is continuing, as we are pushing 
to get an extension to compete the work. So we thank you for 
your work.
    Mr. Ben-Veniste. Thank you.
    Mrs. Maloney. What defense could you possibly give for the 
civil aviation document to be so heavily redacted? Do you have 
any understanding? As I understand, it was the only document 
that was redacted. Is that true? That's what I read.
    Mr. Ben-Veniste. Substantially yes. There were discussions 
but there were minor revisions made, and our staff reports, the 
two other ones that were released, what we call the staff 
monographs, which are far more detailed expositions of facts 
that are contained in more summary fashion in some cases than 
our final report. But that is correct. So if you are asking me 
to put on my hat as a defense lawyer rather than an observer 
and an advocate for openness, I would have to plead ignorance 
on that point.
    I went through, in my prepared remarks, a recitation of 
where we feel that these redactions occurred and why we feel 
that they were unwarranted in each case, including redacting a 
statement of Michael Canavan in open testimony before the 
    Mrs. Maloney. Exactly. Ridiculous.
    Mr. Ben-Veniste. Governor Kean and Congressman Hamilton 
wrote the White House counsel, essentially pointing out the 
deficiencies, on February 11th, stating basically our 
disappointment with the classification review process of this 
last staff statement and offering again to work together with 
them with our staff. White House counsel responded on March 
1st, saying essentially that they had sent the report back to 
the DOJ----
    Mr. Shays. We will put that letter into the record.
    Mr. Ben-Veniste. We can do that. We can make both the 
February 11 and March 1 letters available.
    Mr. Shays. We will put them both into the record.
    [The information referred to follows:]

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    Mrs. Maloney. Thank you.
    I would like to ask you about Sibel Edmonds. As you know, 
the former FBI translator, Ms. Edmonds, is going to be 
testifying today. The Commission also had a chance to interview 
her, as well as to raise her case before FBI Director Mueller, 
when you met with him. The Justice Department Inspector General 
recently released its report on her allegations, finding that 
they were credible and supported by other witnesses and 
    I would like to ask you, Mr. Ben-Veniste, did the 
Commission also find her to be credible?
    Mr. Ben-Veniste. Well, I can't speak for the Commission on 
that, Mrs. Maloney, because that was something where the 
Commission made a determination that her assertions were under 
active investigation by the IG's office. I think Mr. Fein has 
done extraordinary service to this country in the work he has 
performed over time as Inspector General of the Department of 
Justice and I have no reason to think that his report is 
anything but credible and accurate with respect to Ms. Edmonds.
    Mr. Shays. We have 5 minutes to vote.
    Mrs. Maloney. We have to run and vote. It's always a great 
pleasure to see you and thank you again for your great service.
    Mr. Shays. So we will close this panel, and thank you for 
your testimony, Mr. Ben-Veniste. Thank you very much. We will 
start with the third panel when we get back, and we are 
    Mr. Shays. The Subcommittee on National Security, Emerging 
Threats, International Relations is now reconvened for our 
hearing on Emerging Threats, Overclassification and Pseudo-
    I will introduce our three panelists. Mr. Thomas Blanton, 
executive director, National Security Archive, George 
Washington University; Mr. Harry A. Hammitt, editor and 
publisher, Access Reports: Freedom of Information, Lynchburg, 
VA; and Ms. Sibel Edmonds, former contract linguist, Federal 
Bureau of Investigation. Welcome.
    If you would stand, I will swear you all in, as we do in 
our subcommittee. Please raise your right hands.
    [Witnesses sworn.]
    Mr. Shays. Note for the record all three witnesses have 
responded in the affirmative. We appreciate your patience as we 
begin this third panel at 4 p.m.
    We'll just start with you, Mr. Blanton, and we'll go from 

                    BUREAU OF INVESTIGATION


    Mr. Blanton. Thank you very much, Mr. Chairman. It is a 
privilege to be here with you today, also to be here in the 
Rayburn Building, because Sam Rayburn is quite famous in my 
family for having broken up a fist fight on the floor of the 
House of Representatives that was started by a relative of 
mine, a Congressman named Thomas Blanton of Texas. He broke up 
the fist fight by picking up Tom by the scruff of the neck and 
pulling him away. I just suggest, Mr. Chairman, that your 
subcommittee has the secrecy and the pseudo-secrecy system by 
the scruff of the neck. It's up to you to pull it away so it 
stops doing damage to our security.
    Mr. Shays. Will we get a building named after us? 
    Mr. Blanton. I would hope so.
    What I want to do today, very briefly, Mr. Chairman, is try 
to diagnose the problem and offer a couple of solutions. Up on 
the screen, you see this wonderful little graphic that just 
takes all the data that Bill Leonard's wonderful audit office 
has amassed since its start in 1980, that's the first time that 
we started counting the number of national security secrets, 
the number of secrecy decisions. You can see that last year, in 
2003, the number of new national security secrecy decisions 
broke the previous record at the height of the cold war. What I 
just found out today, from your hearing, Mr. Chairman, from Mr. 
Leonard, is that his new report out at the end of the month 
says the new number will actually go off this chart. Secrecy is 
off the charts. It will be 16.1 million, is the latest data 
from 2004.
    Now, two things to remember about each one of these 
decisions. One is they create a stream of secrets, because 
through the magic of e-mail, computers, xeroxing, copying 
attachments, referencing, they actually generate far more 
documents than just the 14 or 16 million that are stamped. 
Second, they create a stream of costs out into the future, 
direct costs to taxpayers. The 2003 estimate was $6.5 billion, 
and that's the unclassified number, we don't know what it costs 
from the CIA. And a stream of indirect costs in ignorance and 
inefficiency and inaction, like in the September 11 example.
    So the question to ask is the one you asked at your August 
24th hearing. You asked how much overclassification exists. 
What I did is just put into one page some of the great answers 
that you got. From 50 percent, said the Pentagon's Deputy Under 
Secretary of Defense for Counter-Intelligence and Security, 
beyond 50 percent is what Mr. Leonard said. Sixty percent is 
what the Interagency Security Classification Appeals has done, 
ruled for the requestor. Seventy-five percent is what Tom Kean, 
the chair of the 9/11 Commission said. Ninety percent was the 
estimate of President Reagan's own National Security Council 
Executive Secretary in quotes to the Moynihan Commission. 
That's how much overclassification, 50 to 90 percent.
    Bottom line, you can sum it up, Houston, we have a problem. 
The antidote to secrecy is this slide, the rise and fall of 
declassification. Again, these are based on the ISOO numbers, 
they're based on sampling of all the agencies that classify 
information or declassify. What you see here is during the cold 
war we had a relatively low level of declassification running 
along for quite a while. In the mid-1990's, boom, with the 
reforms that were in President Clinton's Executive order, 
continued by President Bush, the threat of automatic 
declassification really clarifies the agency's mind. You had a 
boom, and in this period more historical national security 
secrets came out than from all previous Presidents put 
    It has now plummeted. The level is still a little bit 
higher than it was in the cold war, and that's a positive sign.
    The scary stuff is the stuff we can't count. The new forms 
of pseudo-classification like sensitive but unclassified, for 
official use only. This is a fun little response to a Freedom 
of Information Act request. It was a meeting between the 
Homeland Security Secretary Tom Ridge and the Pakistani Foreign 
Minister. This was a briefing memo given to Secretary Ridge. It 
says what your purposes are in assuming that we're going to 
work with the Pakistanis and not treat Pakistanis too badly 
when they come into our country.
    The entire background section is cut out. They could not 
find an identifiable harm under national security to withhold 
this information. So instead, they called it sensitive but 
unclassified and have used the fifth exemption to the Freedom 
of Information Act, the one about deliberative process, to 
withhold the whole thing. This kind of labeling is what's 
proliferating inside the bureaucracy. You see dozens of 
examples we're already getting from people like the 
Transportation Security Administration.
    For example, this next slide is just one example from our 
Freedom of Information request about a circular, one of those 
aviation warnings that Congresswoman Maloney and others were 
talking about that are mentioned in the September 11 report. 
One of the warnings before September 11, it's an unclassified 
circular but it's withheld under SBU, withheld under sensitive 
information, even though the exact quote from it was printed in 
the No. 1 best selling 9/11 Commission Report and in the 
congressional inquiry.
    So the problem here is that the proliferation, which is 
uncounted, unchecked, they have no rules, they have no real 
standards, they have no audit agency like Mr. Leonard's, they 
have no independent review boards like Richard Ben-Veniste's 
review board on the Nazi war crimes. There's none of the kinds 
of checks and balances. Our framers were trying to change a 
culture in 1776. There's a culture of monarchy.
    How do you change a culture? You set up competing centers 
of power and checks and balances on all that power. If you have 
an intelligence czar, you probably need a declassification 
czar. If you have an agency that's creating new labels like 
SBU, you need an independent review board in that agency to 
look at those decisions and push them out. That's the only way 
that we're going to get our hands around this problem, because 
frankly, the bottom line, and this is the one place in the 9/11 
Commission report where they say the attacks could have been 
prevented, it's the only finding in the entire report where 
they say with any amount of certainty, we could have prevented 
    And what do they say? According to the interrogation of 
Ramzi Binalshibh, the pay master of the hijackers, if the 
planners had known that Moussaoui, the Minnesota flyboy, the 
one who only wanted to learn to fly, not to take off or land, 
had been arrested, then they would have canceled the September 
11 attacks. Why is that? Because that FBI agent out in Phoenix 
would have read about in the paper, oh, another Islamic 
extremist arrested at the flight schools. Let's dig that memo I 
sent to Washington out of the vault and get it around to all 
the field offices. Maybe the two guys that they had already 
identified being in the United States might have shown up on 
the 10 most wanted list.
    I mean, this is the only moment the Commission said 
publicity about the arrest might have derailed the plot. 
Publicity. Now, publicity is not a program like the SHARE 
Network that you heard described in the August hearing, the 
Markle Foundation Report that the 9/11 Commission bought into. 
I say basically that SHARE concept is not publicity, and it's 
not really a challenge to the need to know culture. It's an 
expansion of the need to know culture to cover more people. Mr. 
Crowell, your witness, said last summer, he said that the 
network would include ``the relevant players.''
    Who decides who the relevant players are? Is it the 
epidemiologist but not the general practitioners? Is it the 
power plant owners? What about the workers? If it doesn't 
include the public, if it doesn't push the secrets out, then 
it's a system that's not going to work. Then we're right back 
to this obsolete notion of need to know.
    I have to say that I think because of this finding, the 
Deputy Under Secretary of Defense was wrong when she testified 
before your subcommittee last summer as well, because she said 
the tension here, ``How much risk is the Nation willing to 
endure in the quest to balance protection against the public's 
desire to know?'' That's absolutely the wrong formulation. The 
lesson of September 11 is that secrecy was the problem. Secrecy 
destroyed our protection. Too much secrecy was the core of the 
unconnecting of the dots.
    The teaching is between a natural bureaucratic imperative 
that spans every administration, that goes back to the dawn of 
bureaucracy, ancient Iraq under Hammarabi, probably. To control 
information, because information is power and turf and 
resources. Versus how do we actually protect ourselves? Will 
this information if it's released damage us or help protect us?
    The core rule of computer security in the computer security 
world is, if the bug is secret, then the only people who know 
are the vendor and the hacker. The larger community of users 
can neither protect themselves, nor offer fixes. That to me 
should be the principle that we proceed with looking at all of 
these labels. Does this information withholding make us safer 
or not? I think most of these new labels would fail abjectly.
    The question is, how do you make them fail? That's my final 
point. It's just simply, you have to build in an independent 
review board at every agency with a small staff with people 
like Richard Ben-Veniste on it, asking those questions inside 
the agency. You might just want to start with a pretty simple 
measure, ask Admiral McMahon to count the number of sensitive 
but unclassified or for official use only items created in his 
agency last year. He can tell you that he created six actual 
national security secrets. He has to report that number to Mr. 
Leonard's office. There is a limited number of people in his 
agency who even have the authority to list something as secret. 
Ask him to do that about the SBU and FUOU and SSI and all these 
other labels, and you've got a start.
    If you can count them, you can restrain them. If you can 
put a cost on them, you can restrain them. If you can set up an 
ent power structure to push against them, you can restrain 
them. If you limit the number of officials who can label them, 
who can create secrets, who can create these labels and you 
expand the number of officials who are releasing information, 
then you'll win.
    [The prepared statement of Mr. Blanton follows:]

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    Mr. Shays. Thank you very much.
    Mr. Hammitt.


    Mr. Hammitt. Thank you.
    As I have listened to the other witnesses, I thought to 
myself, how much more can I say, and I said what I wanted to 
say in my written testimony. So I thought I would highlight one 
aspect that I don't think has been addressed here today, that 
isn't in my testimony but I hope to elucidate a little bit 
    Mr. Shays. And highlight anything you may disagree with.
    Mr. Hammitt. Verbally.
    Mr. Shays. Anything in the statements earlier that you 
disagree with, please feel free.
    Mr. Hammitt. OK. What I wanted to do was quickly tell the 
story of how we got to where we are today in terms of critical 
infrastructure information as part of the Homeland Security 
Act. I think that because of what happened to us on September 
11th, we frequently see most of this through the lens of 
threats to terrorism.
    But the interesting thing about this, and I think it's kind 
of an interesting object lesson here, is that the critical 
infrastructure information exemption was created largely in 
response to a program that the EPA announced that it was going 
to put worst case scenario reports on the Internet for people. 
These worst case scenario reports are reports that facilities 
that store chemicals or manufacture chemicals or various other 
hazardous substances are supposed to file, talking about what 
would happen if there was an explosion, say, at their facility 
and how many people this might impact and how the community 
might be evacuated, what the safety precautions are, those 
sorts of things.
    The EPA had concluded that under the Clean Air Act, it was 
required to make this as widely public as possible. When the 
chemical industry got wind of this, they enlisted the help of 
the FBI to argue before Congress that to disclose this 
information as widely as the EPA intended to do would be a 
potential boon for terrorists. This was 1999, I believe, so 
several years before the September 11th attacks.
    Congress looked at the issue at that time and basically 
decided to study the issue. They told EPA not to put the 
information on the Internet at that time. At the same time, 
Congress was also looking at a piece of legislation to try to 
resolve a pressing issue which was commonly known as Y2K. In 
this issue, people were worried that computer software might 
not be able to understand when the calendar moved from 1999 to 
2000 and there might be all sorts of deleterious problems 
caused by that.
    In order to get industry to talk about this issue to the 
Government, Congress passed Y2K legislation which allowed 
industry to disclose some of this information to relevant 
Government authorities, but be protected, because the 
disclosure would not be made public and they would also be 
protected from liability. When Congress turned to the critical 
infrastructure information type of exemption, they looked at 
this Y2K exemption as a possible starting point. Indeed, this 
is basically the embodiment of this policy that's in the 
Homeland Security Act.
    So I guess what I wanted to say about this is, we have an 
exemption where voluntarily submitted critical information 
about vulnerabilities in the private sector is given to the 
Department of Homeland Security, and as an observer, my guess 
is that the Department of Homeland Security needs this 
information so they can protect us domestically from possible 
    Well, the problem is we have created a voluntary program in 
which we have essentially said, we won't tell anybody of the 
existence of this threat if you will voluntarily provide the 
information. As I said in my written testimony, I ran across an 
article recently in a publication called Security Focus that 
indicated, generally speaking, the industry hasn't been willing 
to give up this information. They are more worried about what 
would happen to the information if the Government had hold of 
it than they are than if the public had hold of it.
    So I guess my point is this, that if the Government feels, 
and if as a policy the Government feels it needs this 
information to do its duty, my personal opinion is that the 
Government needs to require the industry to disclose this 
information to them, not say, please give me this information 
and in return I won't let anybody else know anything about it. 
I think at the end of the day, it seems to me that if we do not 
know about this sort of information, these vulnerabilities, we 
are basically fooling ourselves, we're lulling ourselves into a 
sense of false security that these situations don't exist. I 
think we're actually doing ourselves more harm than good.
    I thought that Tom Blanton's recommendations for putting 
some of these offices like ISOO into individual agencies were 
extremely good. I guess part of my recommendation really is, I 
don't believe any of these programs are going to go away unless 
Congress makes them go away. So I think that at least at the 
very minimum you all need to think seriously about how to 
restrict the use of these programs within the agencies that are 
already using them now. When I talk about these programs, I'm 
talking about these programs of things like sensitive but 
unclassified and what-not.
    [The prepared statement of Mr. Hammitt follows:]

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    Mr. Shays. Thank you, Mr. Hammitt.
    Ms. Edmonds.


    Ms. Edmonds. Good afternoon. My name is Sibel Edmonds.
    I have been invited to provide you with my testimony today 
regarding my direct experience with the use of excessive 
secrecy, rare privileges and overclassification by the 
Department of Justice against me during the past 3 years. Thank 
you for giving me this opportunity today.
    I believe that my case clearly illustrates how the 
Government uses secrecy laws and classification to avoid 
accountability, to cover up problems and wrongdoings, and to 
gain an unfair legal advantage in court. I began working for 
the FBI as a language specialist for several Middle Eastern 
languages, starting shortly after September 11. I was granted 
top secret clearance.
    During my work, I became aware of problems within the 
translation unit, involving criminal conduct against our 
national interests, potential espionage, serious security 
breaches threatening our intelligence, intentional 
mistranslation and blocking of intelligence. I was asked and 
later ordered to refrain from reporting these allegations. I 
reported them, together with evidence, to higher management 
within the Bureau. They refused to take any action, and they 
asked me not to pursue them.
    I then took these issues and evidence to the Department of 
Justice's Office of the Inspector General and to the Senate 
Judiciary Committee, because I believed that according to our 
laws, these were the appropriate steps to take in this kind of 
a situation. As a result, I was retaliated against, I was 
ordered to submit to a polygraph, which I passed, and they 
confiscated my home computer. Finally, in March 2002, I was 
fired. The only explanation I received for getting fired was, 
for the convenience of the Government.
    In March 2002, the Senate Judiciary Committee began 
investigating my case and allegations, and in July 2002, they 
had two unclassified briefings with the staff of Senator 
Grassley and Senator Leahy. During these two unclassified 
meetings, FBI confirmed basically my allegations, my court 
allegations. Again, these meetings were unclassified, they were 
public. These two Senators issued public statements and letters 
regarding these confirmations that FBI confirmed my allegations 
and my case. They demanded expedited investigation by the 
Inspector General and further response from the FBI.
    These letters and statements were widely disseminated in 
the media and on the Internet, including on the Senators' own 
Web site. When the judge overseeing my legal cases asked the 
Government to produce any unclassified material that was 
relevant to my allegations, the Government took a truly 
extraordinary step. It moved to retroactively classify these 
letters, statements and news releases that had been public for 
almost 2 years.
    It is quite clear that the Government's motivation was not 
to protect national security, although they cited national 
security, but rather to protect itself from embarrassment and 
from accountability. Senator Grassley characterized this 
retroactive classification as ludicrous and gagging the 
Congress. However, the Congress complied. Only after this 
highly unusual retroactive classification was challenged in 
court by POGO, a Government watchdog organization, did the 
Department of Justice reverse itself and declare that this 
information was not considered classified and a danger to our 
national security after all.
    I would like to request that these letters from Senators 
Grassley and Leahy be included in the record of today's 
    Mr. Shays. We would be happy to include them with no 
objection. They will be included.
    [The information referred to follows:]

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    Ms. Edmonds. Thank you.
    In March 2002, the Department of Justice's Office of the 
Inspector General began investigating my allegations. In July 
2004, after almost 2 years delay, it completed its 
investigation. The Department of Justice immediately moved to 
classify the entire report and its findings. Six months later, 
they allowed the Inspector General to release only an 
unclassified version of its executive summary. This 
unclassified version confirmed my core allegations, concluded 
that I was fired for reporting misconduct and stated that the 
FBI had failed to investigate the reported espionage, even 
though other facts, documents, witnesses and evidence support 
my allegations.
    I would like to request that the Inspector General's report 
also be included in the record of today's hearing.
    Mr. Shays. We will be happy to do that as well, without 
    [The information referred to follows:]

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    Ms. Edmonds. Thank you.
    In the summer of 2002, I also began to pursue legal 
remedies to challenge my unjust dismissal under First Amendment 
and Privacy Act, and also under the Freedom of Information Act. 
Rather than respond to the merits of my claim, in October 2002, 
Attorney General Ashcroft asserted a rarely invoked state 
secret privilege, arguing that the entire case must be 
dismissed in the name of national security, even if my 
allegations were correct. According to the state secret 
privilege that they invoked, everything about my case, 
everything about it was considered classified and it could not 
be argued in court.
    The Department of Justice asked the court to try the case 
without any hearings, without any depositions or discovery. 
Even though the Department of Justice's own Inspector General 
had confirmed the seriousness of my allegation, and concluded 
that I was fired for raising them, the DOJ still continued to 
insist that my case cannot go forward because it would 
jeopardize national security. So far, the Department of Justice 
has been successful in this effort to silence these court 
    In June 2004, the court ruled in favor of this far-reaching 
assertion of the state secrets privilege. Currently I am 
applying this case and the Department of Justice is still 
invoking the state secret privilege.
    The Government invoked the state secret privilege a second 
time in an attempt to block me from being deposed in a case 
brought by families of those killed on September 11 against 
Saudi individuals and entities alleged to have financed Al-
Qaeda. The Government insisted that almost every single 
question that the families wished to ask would require the 
disclosure of classified information.
    The problems I have reported have serious consequences to 
our national security and have already been confirmed by the IG 
report and the inquiry of Senators Grassley and Leahy. 
Translation units are the front line in gathering, translating 
and disseminating intelligence. A warning in advance of the 
next terrorist attack may and probably will come in the form of 
a message or a document in a foreign language that will have to 
be translated. If an attack then occurs which could have been 
prevented by acting on information in such a message, who will 
tell family members of the new terrorist attack victims that 
nothing more could have been done? There will be no excuse that 
we did not know, because we do know today.
    Yet knowing full well the seriousness of these confirmed 
issues and problems, rather than addressing them, the FBI and 
the Department of Justice spend time and effort to cover them 
up by over-use of secrecy and excessive classification. 
Contrary to their claims, they seem to be far more concerned 
with avoiding accountability than protecting our national 
security. I believe that my case clearly illustrates the 
Federal Government's capricious use of secrecy laws and 
classification to cover up problems and wrongdoing and to avoid 
    Thank you again for inviting me to testify today. You are 
the first congressional committee after 3 years to request my 
testimony and hear my story. I believe this testimony is a good 
first step in examining the situation. But what is really 
needed is an actual congressional investigation. Therefore, 
with respect for your critical role in our Constitutional 
system of checks and balances, I request that you be the first 
congressional committee to investigate not just my case but 
what is going on over there at the FBI and the Justice 
Department regarding the very serious problem of 
overclassification and the abuse of secrecy.
    Thank you.
    [The prepared statement of Ms. Edmonds follows:]

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    Mr. Shays. Thank you. I will have questions for all three 
of you, but I would first like to turn to Mrs. Maloney, and 
she'll start out.
    Mrs. Maloney. I would like to thank all of the panel 
members for your testimony, and Ms. Edmonds, your testimony was 
very, very upsetting, basically that our Government used their 
own system of classification to dismiss you, to cover up 
complaints and the FBI, according to your testimony, 
substantiated your position. You should be given an award, not 
fired, if you are standing up for what you think is right and 
speaking up and pointing out where you think there may be a 
threat to our country.
    I am going to write a bill and I am going to name it after 
you. It is going to follow very closely the bill that I 
authored along with Senator DeWine on the Nazi War Crimes 
Disclosure Act. It was the largest disclosure of documents 
since the Nuremburg Trial. Mr. Blanton, you pointed out that 
one of the great successes of this bill, they authored what 
needed to happen, but the way it was implemented was the 
constant oversight of a review board of which Mr. Richard Ben-
Veniste was one of the public appointees. And in fact, we are 
still working and confronting the CIA which is refusing to 
release the documents. We are working now in a bipartisan way 
to get an extension of the bill to get them.
    But I am going to take that model and write it for every 
single agency. One of the themes that all of you had was that 
if disclosure is out there, it strengthens our Government. It 
strengthens us when we know what's wrong, because then we know 
what we have to do to fix it. That was what was so important 
about the 9/11 Commission report that it was a strong 
bipartisan effort. It showed that secrecy and failure to 
communicate and the stovepiping and failure to share 
information was one of the reasons, it was an intelligence 
failure. So if we didn't know the information, then we couldn't 
work to correct it.
    But I think that your report is tremendously upsetting to 
me. I do a lot of work on discrimination against women in 
employment. But this was truly your standing up to report 
espionage at the FBI, if I understand it correctly. And instead 
of investigating your claim, the FBI fired you. Is that 
basically what happened in your case, Ms. Edmonds?
    Ms. Edmonds. Yes, absolutely.
    Mrs. Maloney. And as we sit here today, even though the 
Justice Department Inspector General has sided with you, is 
that correct?
    Ms. Edmonds. Correct. They said that my allegations were 
confirmed by other witnesses, facts, evidence and documents.
    Mrs. Maloney. Even though this was confirmed, your 
allegations, when you were trying to help our Government, yet 
the administration, am I correct, is still fighting you?
    Ms. Edmonds. Correct. They are still continuing to invoke 
the state secret privilege and they are saying that despite 
these confirmations and by the Senate, we are considering these 
issues, all of them, classified. Therefore it cannot proceed in 
court. Even the IG report, what we have today, is their 
unclassified version of the executive summary. A big portion of 
this report has not been released yet to date.
    Mrs. Maloney. Our system, when we classify things, it's 
supposed to be used for national security, not to punish 
whistle blowers or cover up a ``mistake'' possibly in an 
agency. I think that your testimony is tremendously upsetting. 
It underscores that a system that we've tried to put in place 
is not working. I am very upset about it.
    Would you say, it's almost unbelievable what you said, 
you're a translator, correct?
    Ms. Edmonds. Yes.
    Mrs. Maloney. What are the languages that you speak?
    Ms. Edmonds. According to the Department of Justice, that 
information is classified. So I cannot name the languages I 
    Mrs. Maloney. Are you making a joke or are you being 
    Ms. Edmonds. No, I have actually questions that were 
submitted and after these questions were submitted, the FBI, 
the Department of Justice, declared the languages I speak, all 
of them, all three of them, classified.
    Mrs. Maloney. I don't understand. Are you telling me that 
the language, they are interpreting that the languages you 
speak in telling this committee what these languages are, 
affects our national security?
    Ms. Edmonds. Correct. That's what they have asserted. 
That's what they have invoked for the past 3 years, that 
information is classified.
    Mrs. Maloney. I fail to understand how in any way, shape or 
form, Ms. Edmonds telling us the languages she speaks affects 
our national security. Why does the Justice Department claim 
that this is classified information? Why do they claim the 
languages you speak are classified information? On what 
    Ms. Edmonds. What they are saying is they can't even say 
why because the information is so classified and it involves 
state secrets that even explaining it would present danger to 
our national security. Even if I'm right with my allegations 
and my case, nothing about me can be discussed because 
everything about me and everything about my case is considered 
the highest level of national security and state secrets.
    Mrs. Maloney. I find this ludicrous and ridiculous and an 
example of how this system is out of control. We have to have 
some oversight on it.
    Can you tell me something about yourself? Where did you go 
to school?
    Ms. Edmonds. That information is classified. [Laughter.]
    Mrs. Maloney. Were you born in this country?
    Ms. Edmonds. I can say no, but I cannot tell you where I 
was born. That information is classified.
    Mrs. Maloney. Mr. Chairman, I find this absolutely absurd. 
I hope it's an area we can work in together. We need an 
independent review board, I would say, in every single agency. 
It's probably more compelling in national security, but every 
single agency that may have a whistle blower that they want to 
silence or whatever can just sit there and classify everything 
about that person so they can't even express their situation.
    I have a series of other questions for the other two, but I 
see the red light is on, and my time is up.
    Mr. Shays. Why don't I ask a few questions, and then 
    Mrs. Maloney. OK, thank you.
    Mr. Shays. Why don't the two of you just react to Ms. 
Edmonds' testimony?
    Mr. Blanton. I would be glad to.
    Mr. Shays. What I would like you to do first, I would like 
you to explain why there is a National Security Archive at 
George Washington University, I would like you to explain why 
there is an Access Report: Freedom of Information at Lynchburg, 
Virginia. Just explain to me the significance of what each of 
you do before you answer the question.
    Mr. Blanton. When the Freedom of Information Act really 
started to apply to national security information, it was only 
in 1974, it was over President Ford's veto. About 10 years 
after that, a number of journalists and historians had amassed 
so much documentation released through FOIA that I think their 
spouses threatened to divorce them if they didn't get it out of 
the house. Thus, the National Security Archive was born. We've 
always stood up for family values ever since. I'm only partly 
    Mr. Shays. But it's part of the university?
    Mr. Blanton. Yes, sir, we are an affiliate of George 
Washington University. We're housed in the main library at 
George Washington University.
    Mr. Shays. How many staff?
    Mr. Blanton. We have about 33 people on staff here and 
about 11 people around the world that we pay part or all of 
their salaries.
    Mr. Shays. What is the value of this institution?
    Mr. Blanton. We file more Freedom of Information requests 
than anybody else in the non-profit, non-commercial world.
    Mr. Shays. You request them?
    Mr. Blanton. We file the requests. We request the 
documents. What we are after is, we're trying to create an 
institutional memory against this most shrouded area of 
American governance.
    Mr. Shays. That's helpful. Thank you.
    Mr. Hammitt, tell me, what is the Access Reports: Freedom 
of Information? What is that?
    Mr. Hammitt. I started writing Access Reports in 1985, then 
I bought it from the small company that originally owned it in 
1989. Access Reports is a bi-weekly newsletter that deals 
specifically about the Freedom of Information Act. It also 
deals about Government information issues generally and what I 
refer to as informational privacy. The four statutes that I 
cover rather closely are the Freedom of Information Act, the 
Privacy Act, the Federal Advisory Committee Act and the 
Sunshine Act. I also cover cases that have happened on the 
State level. As you know, in Connecticut, you have your own 
FOIA and all the other States have similar sorts of laws.
    Mr. Shays. So now just tell me, how did you digest what Ms. 
Edmonds was saying? First, let me ask you, Ms. Edmonds, is some 
of this information being held up because the court says it's 
not public information now because you're in a court case? Or 
is this all the Government saying that you can't discuss this?
    Ms. Edmonds. No, these are all invoked by the Government, 
and in various cases, not only court cases. That's what they 
did, even when they retroactively classified those Senate 
letters. They said they could not even refer to----
    Mr. Shays. So it wasn't the court?
    Ms. Edmonds. No.
    Mr. Shays. Let me just tell you the problem of being the 
``first to investigate a case.'' I'm going to be asking the 
staff to look at the IG's report and be in contact with the IG 
about it. But when someone chooses a venue in court, we do not 
want to be used by the plaintiff to be the source of 
information. We don't want to be used that way. So we kind of 
back off when someone goes into court. It puts us in a 
situation where we don't know whether we're doing your bidding 
or trying to find--it kinds of distorts the issue. So it 
complicates it a bit. But we'll be doing some looking at the 
staff level at this case.
    Would you both explain to me what your reaction is?
    Mr. Hammitt. Well, as I listened to what Ms. Edmonds said, 
when she says that the language that she can speak or where she 
was born or where she went to school is classified, I mean, 
that's information that intrinsically belongs to her. I see 
absolutely no way in which the Government can classify that 
information, or prevent her from speaking about it on her own. 
I can see that there are certain aspects of her case that 
theoretically could come under the shroud of the state secrets 
    To go a little further, I have seen other cases in which 
the Government has invoked the state secrets privilege. From my 
point of view as an observer, the state secrets privilege is 
almost invariably invoked by the Government when it just wants 
to stop litigation dead in its tracks. The district court judge 
basically ruled against Ms. Edmonds in this case, as I 
understand it, having read the decision, because all it takes 
to invoke the State Secrets Act is to have the attorney general 
sign the declaration and submit it to the court.
    Mr. Shays. So the court then becomes obligated to--case 
closed in a way.
    Mr. Hammitt. As the privilege is interpreted now, I believe 
that once the court has agreed that the privilege has been 
improperly invoked, they have no more power. Her case is up 
before the D.C. Circuit now. I don't know that there is a date 
set for it yet or not.
    Mr. Shays. You're almost implying it's stacked against her 
because the absurdity of classification can be used against her 
and a court can't evaluate whether it's being misused, in a 
    Mr. Hammitt. Absolutely. The State Secrets Act, a state 
secret privilege is the broadest privilege I've ever run 
    Mr. Shays. When you heard this, you thought, well, I'll 
tell you what I thought. I thought this is an absurdity. It 
makes me want to understand why someone wouldn't be rewarded 
for reporting concerns that an employee has. But were you 
listening to this and saying, this isn't so surprising, I've 
seen it before?
    Mr. Hammitt. No, no. I don't mean to imply that. I think 
that what Ms. Edmonds said, as I say, about her background, I 
think that I haven't heard anything any more absurd, although I 
think as Mr. Ben-Veniste said, I'm never surprised at how 
absurd certain things are in life. So no, I would completely 
agree with you. But this is an extraordinarily broad based 
privilege. Litigating in this area of national security, and 
this is just part of that, is like hitting your head, butting 
your head up against a brick wall.
    Mr. Shays. Ms. Edmonds, if I had reported what I thought 
was evil work against my Government and I was then punished, it 
would be my life work not just to vindicate myself, because I 
don't think I would need vindication, but to hold every one of 
those people accountable. Certainly we will be looking at that 
    Mr. Blanton.
    Mr. Blanton. Mr. Chairman, with many secrets, not all, I 
should say, many secrets there is a kernel of truth in the 
sense that the FBI probably maintains internally, they're not 
all evil people, in fact a lot of people of goodwill, that to 
reveal the languages that Ms. Edmonds speaks would reveal 
something about their targeting of foreign nationals, about 
their pattern of wire tapping, about what they're trying to 
gather. At least that's the claim that I can imagine in their 
papers. I've seen claims like that in countless Freedom of 
Information cases.
    When there is any kind of independent review of those 
claims, they almost always fall apart. Not always, there are 
some real secrets. But they almost always fall apart. The 
problem with the state secrets privilege is the courts don't 
provide any such independent review.
    The one case that set the precedent, the so-called Reynolds 
case in 1952 in the Supreme Court, which upheld what turns out 
to be a false Air Force affidavit. We know this because of the 
declassification of the 1990's. One of the survivors' kids got 
a copy of the crash report that was released in the big 
declassifications of the 1990's. She was able, like in a DNA 
data base, to go back and unconvict the murderer, she was able 
to go back to that case and say, wait a second, Air Force was 
covering up negligence in the airplane crash.
    She can't get a hearing. The Supreme Court refused to 
accept the case. The state secrets privilege continues as kind 
of the neutron bomb of whistle blower litigation. It leaves no 
plaintiff standing.
    Mr. Shays. Is the case that's still out there?
    Mr. Blanton. The law firm in Philadelphia, the so-called 
Reynolds case, has tried to reopen it. They were rejected at 
the Supreme Court. I believe they have a petition at the 
Federal courts in Pennsylvania. It's still out there. It's a 
fascinating case, because it shows you when you look closely 
and have any kind of independent check on these claims, you get 
a different result than what you start with.
    Mr. Shays. Well, we have a full committee, we have been 
looking at the case in Boston of where four people were falsely 
accused of murder and held in jail, two died, I think, in 
prison and two were set free. But they were even on death row 
for a while. He was separated from his wife and children for 30 
years. As far as I'm concerned, the Government owes him so much 
and yet it is a struggle.
    The interesting thing is there, I would be somewhat 
involved in wanting to help them in that court case, so I have 
to think through this one as well.
    Mrs. Maloney.
    Mrs. Maloney. Based on the IG report that substantiated 
your case, just let me know any time you're going into court 
and let me see how many women leaders I can get to come stand 
with you.
    I find this extremely upsetting. It basically shows that 
the Government can close down any information, including the 
ability of a ``defendant'' to defend himself or herself. If you 
can't even say what languages you speak, how in the world can 
you defend yourself in court? I mean, it's just really 
disturbing. If we can't look at it as a Government and the 
courts can't look at it, what's there to protect these people? 
I would ask Mr. Hammitt and Mr. Blanton, what recourse do they 
have if they can come in and say their entire court case is 
classified, what in the world can they do? No one can look at 
it. No one can do anything about it. You are basically taking 
the rights of these individuals away. To me, it's very 
    What recourse do people have when they come in and say, 
your case is classified, no one can look at it? What can you 
    Mr. Hammitt. I think everything you're saying is absolutely 
right and it's incredibly distressing. The only thing I think 
that somebody like that has is the power of publicity. That's 
not necessarily going to get them a hearing. I mean, the only 
other tool available to them after they've had their litigation 
shut down is to try to embarrass the Government to such an 
extent that the Government decides to come to the table. It's 
terrible that you have to do that.
    Mrs. Maloney. Believe me, it's hard to get publicity on 
anything. Take Ms. Edmonds' case, what is she going to do, go 
down to a paper and say, just write up my case? I think that's 
a hard thing to achieve. Do you want to talk about that, Mr. 
    Mr. Blanton. If she wins in the appeals court, it will be a 
great victory. If she loses, she'll be back in front of you, 
asking for your help as a committee of this Congress to push 
further. Because the reality is, there are very few recourses. 
That's why Congress, I think, in the interests of the same 
checks and balances that as an institution you represent, needs 
to think very creatively about how do you balance off something 
like the state secrets privilege?
    Mr. Shays. When will your case be heard?
    Ms. Edmonds. You mean my court case? We have an appeal, our 
hearing is on April 21, 2005.
    Mr. Shays. If there was an issue of you losing on the 
merits, that's one thing. If there is an issue of you losing 
because it can't be heard because of state secrets, I want you 
to knock our door down.
    Ms. Edmonds. May I say something?
    Mr. Shays. Sure.
    Ms. Edmonds. That is a court case. That is a totally 
separate case. The issue of retroactively classifying 
congressional documents, which the Government changed its mind, 
this is the Department of Justice, just 2 weeks ago, saying for 
9 months, we consider it national security, top secret, 
classified, but it no longer is. And the fact that there is an 
IG report currently out, even in its own classified executive 
summary version, confirms all my core allegations. It clearly 
says that the FBI, to this day, has failed to investigate these 
espionage cases, the cases where translations were 
intentionally blocked. Those translators are currently in there 
receiving our intelligence and they are translating it right 
now. They are the ones that we are entrusting our national 
security with.
    These issues actually have nothing to do with my court 
cases. These issues have to do with the U.S. Congress and the 
oversight and the system of checks and balances.
    Mr. Shays. If the gentlelady would yield again?
    Mrs. Maloney. If I could please ask her a question first. 
Am I hearing you right, to this day the FBI has not 
investigated your espionage allegations? And even though the IG 
report has been out for some time, would you clarify that?
    Ms. Edmonds. Correct. The Department of Justice's Inspector 
General's report says that FBI, despite the fact that all these 
issues and allegations were confirmed by other sources, 
evidence, facts and documents, they still have not acted. They 
have not taken any action. That's correct.
    Mrs. Maloney. So in other words, rather than investigate 
the allegations thoroughly, the FBI concluded that you were 
disruptive or whatever and terminated you, is that correct?
    Ms. Edmonds. That's what the report says, that they 
terminated me because I was not backing up from these 
allegations and that was being disruptive.
    Mr. Shays. Excuse me, Mrs. Maloney, if the gentlelady would 
yield just a second.
    Mrs. Maloney. I would be happy to yield.
    Mr. Shays. I'm happy to have her go beyond her 5 minutes, 
but I just want to make sure that after the meeting, you get 
with my two staff members here and Mrs. Maloney's staff, and 
you give us the names of the people that you are accusing of 
illegal actions against their Government. We will contact the 
FBI tomorrow and ask for an accounting of whether or not they 
are looking into those individuals. We will be happy to pursue 
    So after this meeting, you get together with the two staff 
behind me. You have the floor again, Mrs. Maloney.
    Mrs. Maloney. Well, I have a series of questions on this, 
but I really would like to speak to my colleagues, particularly 
my colleague in Government and my colleagues in this room, 
about these serious ramifications that her case illustrates. I 
would say throughout every agency in Government, that the 
individual can basically be told to shut up if the agency 
doesn't like what they're saying, and not even bother to 
investigate what the person is saying is in my opinion an 
outrageous abuse of power.
    But also I would say, Mr. Chairman, given the focus that we 
now have on homeland security and the amount of dollars that we 
are allocating, I would say clearly a third of a trillion 
dollars we've put into various homeland security, defense and 
Iraq and other areas, the inability to be able to look at these 
contracts or to have a whistle-blower come to us or anyone else 
and talk about it, they can effectively gag them under these 
provisions that they have, and they absolutely have no 
    I think it's wrong for any person in any agency, even if 
you're an educator and you think there is an abuse in the 
purchasing of the books or whatever, but it's particularly 
problematic with tremendous ramifications in homeland security 
dollars and homeland security allegations. I find quite frankly 
your testimony absolutely and completely terrifying. I don't 
even want to believe it, because I want to believe in my 
Government. But what happened to you is extremely wrong, and 
upsetting to me.
    I want to go back and make sure that I understand where we 
are. Basically, Ms. Edmonds, you testified that the FBI ignored 
your allegations of criminal conduct. I find that hard to 
believe, but that's what you said.
    Ms. Edmonds. Absolutely correct.
    Mrs. Maloney. Then you took the information to the Senate 
Judiciary Committee, correct?
    Ms. Edmonds. Correct.
    Mrs. Maloney. Then the Department of Justice Office of IG?
    Ms. Edmonds. Correct.
    Mrs. Maloney. And after the Senate Judiciary Committee 
began investigating your claims in a bipartisan way, Senators 
Grassley and Leahy, they issued public statements and letters 
demanding an expedited investigation by the IG and a response 
from the FBI, is that correct?
    Ms. Edmonds. Yes, they said during their unclassified 
briefings with the FBI, ``FBI confirmed all their allegations 
and they denied none.''
    Mrs. Maloney. And even though these statements and letters 
were widely distributed, the administration then chose to 
retroactively classify them years later?
    Ms. Edmonds. Two years later.
    Mrs. Maloney. Two years later they then retroactively 
decide, you know, to me, it's wrong in your case, but it's 
wrong that the Government has the ability, or power to jump 
back 2 years and classify information they don't want to come 
out. I find this tremendously upsetting.
    So let me make sure I understand. So after two U.S. 
Senators, in a bipartisan way, issued public statements about 
unclassified briefings, the administration actually went back 
and classified them?
    Ms. Edmonds. Correct.
    Mrs. Maloney. And this happened 2 years after they issued 
these statements?
    Ms. Edmonds. Yes.
    Mrs. Maloney. Did you have an attorney? Were they able to 
do this? Do you have an attorney representing you?
    Ms. Edmonds. Yes, I did.
    Mrs. Maloney. By law they can go back and classify 2 years 
past? And after all that time, why do you think these public 
statements and letters were classified? Why did they jump back 
2 years and classify these letters and statements?
    Ms. Edmonds. They believe that it was due to the fact that 
at that point they were trying to gain their upper hand both in 
court cases and also with respect to the Inspector General's 
report and also other cases brought by the September 11 family 
members against certain countries.
    Mrs. Maloney. OK. I'd like to ask you in your view, was 
there anything in the statements and letters that in any way in 
your opinion constituted a threat to our country's national 
    Ms. Edmonds. No, absolutely not. Not only that, if that was 
the case, there were thousands of Web sites that displayed 
these letters for over almost 2 years, over the Internet. These 
letters were quoted extensively, on the front page of the 
Washington Post, in other newspapers.
    So the Government never went back and took out that 
information, those letters, from all other sources that had 
this information available. They just wanted to shut down these 
congressional investigations and these line of questions and 
investigations by the Senate.
    Mrs. Maloney. Well, what I find tremendously upsetting, Mr. 
Chairman, is this fact pattern that she's putting out there is 
showing that the public has absolutely no chance against the 
Federal Government. If the Federal Government decides to close 
you down, there is no court case, the so-called independent 
court system wouldn't be able to look at it, because you can't 
even say where you were born or what languages you speak, much 
less what happened. All I can say is that, congratulations to 
the IG system that this Congress put into place that has one 
form of resource of independent review that has come in and 
substantiated what you've said.
    I find her story incredibly upsetting. I would like to ask 
Mr. Hammitt and Mr. Blanton, what is your response to her 
story? I have never heard of this before? What is your response 
to this?
    Mr. Blanton. It happens all the time.
    Mrs. Maloney. This is an abuse of power.
    Mr. Blanton. Absolutely, and it happens all the time, and 
anyone who has looked at classified-declassified information 
and Freedom of Information cases sees the same kinds of claims. 
I think it will only stop when we figure out a way to give the 
court some backbone. Right now, the case law is almost complete 
    But there is a wonderful precedent right here in the D.C. 
Circuit. We brought a Freedom of Information case about the 
failed Iran rescue mission. We asked the judge, when the 
Pentagon said, it's all totally classified, not a page can be 
released, we said, appoint a special master. You do it in 
desegregation cases of public schools. Appoint somebody who 
actually has some expertise, a person who held some clearances, 
who can look at it.
    Just by bringing in the special master, the court was able 
to pry loose ultimately 88 percent of the total body of 
information the Pentagon originally said not one word could 
come out. And let me tell you one of the top secrets that was 
included. It was the after-action report from the helicopter 
pilots who told the Pentagon, don't include milk in our box 
lunches, it goes sour in the desert heat.
    So if Congress could actually endorses this kind of 
precedent, which only really exists here in the D.C. Circuit, 
encourage courts to take creative countervailing power, like 
appointing special masters, in cases that involve national 
security secrets, where the judge, for some good reasons, does 
not feel expert, does not feel able to argue with the 
Government claim, will show total deference to the Government 
claim. You have to move some other countervailing power into 
the system. If the appeals court appointed a special master to 
look at Ms. Edmonds' case and to look at the case file, my bet 
is that 90 percent of what's in the IG report, what's in the 
complaint file and the investigations file would be released 
    Mr. Hammitt. At the risk of piling on, I'm afraid I 
completely agree with Tom. I think these sorts of instances 
happen much, much too frequently, and I think that the state, 
when I see the state secrets privilege invoked by the 
Government, my first reaction personally as an observer is, the 
Government doesn't want this litigation to happen. It doesn't 
have to specify why it believes this is a state secret, it just 
has to, as I said earlier, it has to provide this affidavit 
signed by the Attorney General.
    And that, if the Attorney General is on board, that's not a 
terribly difficult obstacle to overcome. This sort of thing 
happens when the Government just does not want this litigation 
to go forward. I completely agree with Tom. I can't personally 
believe that there's any national security involved in there.
    Mrs. Maloney. I just want to thank the chairman for an 
extraordinary hearing. I just have one last question for Mr. 
Blanton. When I read redacted Freedom of Information claims, 
they always cite section 5. They get an exemption or we're 
blacking it out because of section 5. Could you in a general 
sense tell me what is section 5? How come they can redact so 
much under section 5?
    Mr. Blanton. This is the deliberative process exemption. 
Like many exemptions, it comes from a kernel of a good idea. 
You want to encourage the most candid exchanges of views, you 
want to encourage officials inside any proceeding to give their 
frankest possible advice.
    But I would say today, with the Ashcroft memoranda and the 
way the Government is interpreting it, the B(5) exemption, so-
called, is now a shadow covering the entire body, or as much as 
they can cover of Government information. The problem 
fundamentally I think comes to the core question: How does it 
really make us safer? If a Government official would change 
their advice to a policymaker for fear of being public, the 
remedy is to fire that weak-kneed official, not keep that 
opinion secret.
    Mrs. Maloney. Thank you very much.
    Mr. Shays. Ms. Edmonds, I'm a little confused as to what 
the status of your relationship is with Grassley and Leahy. Are 
they pursuing this? Have they dropped your case? What have they 
    Ms. Edmonds. That's what I am waiting to hear back, because 
I have been sending letters saying, for 2 years I was told that 
everybody in the Congress has to wait for the Inspector 
General's report to come out before----
    Mr. Shays. You're not being responsive to my question. My 
question is, what is your relationship with Mr. Leahy and Mr. 
Grassley right now? These are two distinguished elected 
officials who have had a chance to review your case far more 
than Mrs. Maloney and I have. I want to know, are they actively 
pursuing your case?
    Ms. Edmonds. I really can't answer, because I don't know. 
They're not being responsive.
    Mr. Shays. So there is a challenge that you have working 
with these two very distinguished people.
    Ms. Edmonds. They have been actually very supportive and 
good in the past. It's just that they haven't been responsive 
since the IG report.
    Mr. Shays. Which is how long ago?
    Ms. Edmonds. The IG report, they gave it to the Senators 
because they could review it, the classification, etc., in July 
2004. So since July 2004, I haven't had any response.
    Mr. Shays. I think the first thing will be obviously to 
contact them and find out what work they've already done so we 
don't have to duplicate it and so on.
    Is it conceivable that the FBI felt that some of your 
complaints were beyond your ability to know? In other words, a 
question of someone's time sheet? As we're just going through 
it, the IG said you made a complaint about someone's time sheet 
and that person wasn't even there that day.
    Ms. Edmonds. I didn't make complaints about those. In fact, 
those issues came out much later with the IG, because the IG 
says, a lot of cases in the FBI were criminal, and that to be 
exact, they said since the Inspector General's office is not in 
the business of conducting criminal investigations, we want to 
find out about these nitty-gritty administrative stuff. That's 
how they worded it.
    Mr. Shays. I just want to say, in the report, you accuse 
someone of a time sheet not being accurate, and they found out 
that the person wasn't even in the office that day. That takes 
away your credibility, obviously, when you are making 
complaints about someone and are wrong about that.
    I'm just saying, I want you to know I am deeply concerned 
about your testimony and I have to accept on the face of it 
certain comments. But it's a ``he said, she said,'' and I don't 
know what the other side is. I just want to respond to you that 
I don't know what the other side is on this.
    I do know that I don't like classification to be used as 
the basis not to know both sides. I do know that if you have 
accused someone of espionage, I sure as hell am not going to 
have you tell me that nothing's been done and then just not 
respond to it. We're going to respond to it, and you're going 
to tell us who those people are and we're going to find out 
what happened. So we're not going to drop the ball here.
    But I just want you to know, I've been in this business now 
30 years. We have one side of this story. We will try to 
understand the other side and then take appropriate action. 
That's my point.
    Ms. Edmonds. That's exactly what I believed that the IG 
report was going to do, and also the Senate letters.
    Mr. Shays. Do you think it did that?
    Ms. Edmonds. Yes, to a certain degree, and also the Senate 
letter saying that the FBI had already confirmed all those 
    Mr. Shays. I'm asking about the IG. In other words, you 
suggest the IG's report be something that is submitted for the 
record, and we submitted it for the record, we're going to be 
looking at it.
    But when we look at the record, it's not something that 
makes you, it does raise one or two questions about what your 
participation in this is. It has a ``Keystone Cops'' kind of 
feel to it, with espionage, which is extraordinarily serious, 
somehow intertwined in here. So it has charges that seem petty 
that you are making as well as espionage at the same time. So 
it's just an interesting kind of mix of stuff here that we 
haven't looked at yet and will look at.
    Ms. Edmonds. That was by IG's choice, sir.
    Mr. Shays. What was that?
    Ms. Edmonds. That was by IG's choice, because the 
allegations that I took to the Senate and to the IG were those 
core allegations you see at the beginning that had to do with 
mistranslations, intentional block of translations and 
espionage cases. But the other ones that----
    Mr. Shays. Espionage case, in other words, involved in 
espionage or they were guilty of espionage?
    Ms. Edmonds. How it was told to this date is potential 
espionage case, security breaches that were confirmed by other 
witnesses, facts, evidence.
    Mr. Shays. I just want to be clear. Are you accusing people 
of committing espionage?
    Ms. Edmonds. I am accusing people with documents, evidence, 
dates and other witnesses of involving in actions against the 
United States, national security, intelligence, military 
secrets and nuclear secrets.
    Mr. Shays. What about military and nuclear secrets, that 
they were doing what?
    Ms. Edmonds. I cannot talk about that information unless I 
am in a secured facility.
    Mr. Shays. You're accusing them of committing espionage is 
the answer or not?
    Ms. Edmonds. Right.
    Mr. Shays. So you will meet with our staff afterwards.
    Is there anything that any of you would like to put on the 
record before we adjourn? Any last points? We weren't intending 
to focus this much on one case, but it certainly was 
illustrious of an issue and very informative. We thank you for 
being here.
    Mr. Hammitt. I guess from my point of view, I would just 
like to thank the subcommittee for its interest in this 
subject. I think that it's going to take serious congressional 
oversight and possibly legislative initiatives on the part of 
Congress to do something about the growth of these sorts of 
non-classified systems of information. I really appreciate the 
fact that you are looking at this, because this is an extremely 
serious problem.
    Mr. Blanton. Mr. Chairman, you asked the question last 
summer that got all this started, because you forced people on 
the record to say how much overclassification is there. If you 
ask the same questions about the pseudo-classification, it's 
the beginning of reining it in and having a more rational 
system that actually protects us and accountability.
    Mr. Shays. Let me just quickly, that was one of my 
intentions before I was thinking so much of Ms. Edmonds' case. 
Are these pseudo-classifications something that have been, 2 
years ago, 3 years ago, 10 years ago, 15?
    Mr. Blanton. They have happened as long as there have been 
bureaucrats in the world. Harold Relyea's paper, which is a 
fascinating read, takes us back to the 1950's, it has the 
battles of pseudo-classification just like this. It's a bad 
idea, it's a natural, I think, human response, if you're in a 
bureaucracy it's how you protect your turf, it's how you get 
more resources, it's how you keep other people out.
    General Groves, the head of the Manhattan Project, listed 
six or eight reasons of why we have to have secrecy around the 
nuclear bomb. The first three were the Germans, the Japanese 
and the Russians. But the next one was to keep prying outsiders 
and other executive agencies and the Congress from knowing what 
we were doing. Another one was, keep our folks focused on their 
own work and not messing around in other compartments. Another 
was to have surprise. He said, but of course that one got lost 
as soon as we blew up the bomb. That was the big secret, that 
it worked. Once you knew it worked, any competent physicist 
could go back and make a nuclear bomb. It wasn't really a 
secret any more.
    The people who have real secrets to protect will also tell 
you, there's a bureaucratic imperative. So you have to count 
them, cost them, limit the people who can create them, put in 
countervailing powers, have independent reviews, and then 
you're part-way there.
    Mr. Shays. We had a staff retreat yesterday in which I was 
telling my staff that I wanted to be able to do ``cutting edge 
issues'' and then do some significant follow-through. I guess 
this qualifies on both levels.
    Mr. Blanton. Yes, sir, that's true.
    Mr. Shays. This is a very interesting issue and one which 
will get some good attention for this subcommittee.
    Any closing words from you, Ms. Edmonds, before we adjourn?
    Ms. Edmonds. No, I just want to repeat one thing and that 
    Mr. Shays. So yes, you want to repeat? [Laughter.]
    Ms. Edmonds. Yes, thank you.
    And that is, aside from the issues that we will be 
discussing, with the other reports out there regarding the 
FBI's translation units and what has happened there in terms of 
inaccuracies, incompetence, back-door hirings, these have been 
already confirmed, not only through me. I can also give you the 
names, you can get it from the IG. We do need hearings 
regarding these issues, because to this date, they have not 
addressed these issues internally. We are in touch with 
translators in there who are saying, there are only cosmetic 
    Mr. Shays. Some things we can maybe even achieve without 
hearings, but by simply asking questions and having staff do a 
little investigative work. It's amazing what we can get done 
doing that.
    So your testimony has been very helpful to us and we will 
definitely follow through. You're due to meet with staff 
    So with that, with no additional comments, we are going to 
adjourn this hearing.
    [Whereupon, at 5:11 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record