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EMERGING THREATS: OVERCLASSFICATION AND PSEUDO-CLASSIFICATION
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HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY,
EMERGING THREATS, AND INTERNATIONAL
RELATIONS
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
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
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
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
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
GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland
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
Relations
CHRISTOPHER SHAYS, Connecticut, Chairman
KENNY MARCHANT, Texas DENNIS J. KUCINICH, Ohio
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida BERNARD SANDERS, Vermont
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio CHRIS VAN HOLLEN, Maryland
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
----------
Page
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
Investigation:
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
EMERGING THREATS: OVERCLASSFICATION AND PSEUDO-CLASSIFICATION
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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
order.
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
democracy.
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
pieces.
[The prepared statement of Hon. Dennis J. Kucinich
follows:]
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Mr. Shays. I thank the gentleman. I agree with many of his
comments.
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
chairman.
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
record.
[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
version.
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
City.
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
procedures.
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
witnesses.
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
preparation.
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
follows:]
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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
committee.
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.
STATEMENTS OF J. WILLIAM LEONARD, 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
STATEMENT OF J. WILLIAM LEONARD
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
information.
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
testimony.
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.
STATEMENT OF REAR ADMIRAL CHRISTOPHER A. McMAHON
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
activities.
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
Transportation.
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
it.
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
it.
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
contact?
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
documents.
Mr. Marchant. Does the DHS have the same criteria, same
procedure?
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
strict.
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.
Shays.
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
think----
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,
ma'am.
Mrs. Maloney. Well, then, can you tell me who did redact
it?
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,
ma'am.
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
documents?
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
subcommittee.
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.
Chairman.
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
comply.
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
balanced.
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.
[Recess.]
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.
STATEMENT OF HAROLD C. RELYEA
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
program.
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
today.
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
consideration.
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
assertion.
Mr. Waxman. So it would be inappropriate, in your view, for
an agency to simply abdicate its responsibility to make its own
assessment?
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
area?
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
area.
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
here.
STATEMENT OF RICHARD BEN-VENISTE, COMMISSIONER, NATIONAL
COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES
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
regard.
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
office.
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
scenes?
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
attended.
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
that----
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
produced----
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
Commission.
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
evidence.
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
recessed.
[Recess.]
Mr. Shays. The Subcommittee on National Security, Emerging
Threats, International Relations is now reconvened for our
hearing on Emerging Threats, Overclassification and Pseudo-
Classification.
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
there.
STATEMENTS OF THOMAS BLANTON, 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
STATEMENT OF THOMAS BLANTON
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?
[Laughter.]
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
together.
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
it.
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
independ-
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.
STATEMENT OF HARRY A. 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
more.
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
threats.
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.
STATEMENT OF SIBEL 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
hearing.
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
objection.
[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
cases.
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
accountability.
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
speak.
Mrs. Maloney. Are you making a joke or are you being
serious?
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
grounds?
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
we'll----
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
joking.
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
privilege.
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
sense.
Mr. Hammitt. Absolutely. The State Secrets Act, a state
secret privilege is the broadest privilege I've ever run
across.
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
issue.
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
upsetting.
What recourse do people have when they come in and say,
your case is classified, no one can look at it? What can you
do?
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.
Blanton?
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
that.
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
recourse.
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
security?
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
deference.
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
tomorrow.
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
done?
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
allegations.
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
is----
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
changes.
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
afterwards.
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
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