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                       AND SENSITIVE INFORMATION



                               before the


                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                             MARCH 14, 2006


                           Serial No. 109-167


       Printed for the use of the Committee on Government Reform

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


                           WASHINGTON : 2006 
29-385 PDF

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

                      David Marin, Staff Director
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel

Subcommittee on National Security, Emerging Threats, and International 

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

                               Ex Officio

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

                            C O N T E N T S

Hearing held on March 14, 2006...................................     1
Statement of:
    Blanton, Thomas S., director, National Security Archive, 
      George Washington University, Washington, DC; Anna K. 
      Nelson, distinguished historian in residence, American 
      University, Washington, DC; and Matthew M. Aid, Washington, 
      DC.........................................................   301
        Aid, Matthew M...........................................   332
        Blanton, Thomas S........................................   301
        Nelson, Anna K...........................................   324
    Weinstein, Allen, Archivist of the United States, National 
      Archives and Records Administration; J. William Leonard, 
      Director, Information Security Oversight Office, National 
      Archives and Records Administration; Davi M. D'Agostino, 
      Director, Defense Capabilities and Management, U.S. 
      Government Accountability Office; Robert Rogalski, Acting 
      Deputy Under Secretary of Defense, Counterintelligence and 
      Security, U.S. Department of Defense; and Glenn S. 
      Podonsky, Director, Office of Security and Safety 
      Performance Assurance, U.S. Department of Energy...........   231
        D'Agostino, Davi M.......................................   243
        Leonard, J. William......................................   238
        Podonsky, Glenn S........................................   271
        Rogalski, Robert.........................................   257
        Weinstein, Allen.........................................   231
Letters, statements, etc., submitted for the record by:
    Aid, Matthew M., Washington, DC, prepared statement of.......   334
    Blanton, Thomas S., director, National Security Archive, 
      George Washington University, Washington, DC, prepared 
      statement of...............................................   305
    D'Agostino, Davi M., Director, Defense Capabilities and 
      Management, U.S. Government Accountability Office, prepared 
      statement of...............................................   245
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, prepared statement of...................    17
    Leonard, J. William, Director, Information Security Oversight 
      Office, National Archives and Records Administration, 
      prepared statement of......................................   240
    Maloney, Hon. Carolyn B., a Representative in Congress from 
      the State of New York, prepared statement of...............   163
    Nelson, Anna K., distinguished historian in residence, 
      American University, Washington, DC, prepared statement of.   327
    Platts, Hon. Todd Russell, a Representative in Congress from 
      the State of Pennsylvania, prepared statement of...........   350
    Podonsky, Glenn S., Director, Office of Security and Safety 
      Performance Assurance, U.S. Department of Energy, prepared 
      statement of...............................................   272
    Rogalski, Robert, Acting Deputy Under Secretary of Defense, 
      Counterintelligence and Security, U.S. Department of 
      Defense, prepared statement of.............................   259
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut:
        Prepared statement of....................................     6
        Various reports and letters..............................3, 168
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California, prepared statement of.................    10
    Weinstein, Allen, Archivist of the United States, National 
      Archives and Records Administration, prepared statement of.   234

                       AND SENSITIVE INFORMATION


                        TUESDAY, MARCH 14, 2006

                  House of Representatives,
       Subcommittee on National Security, Emerging 
              Threats, and International Relations,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:04 p.m., in 
room 2154, Rayburn House Office Building, Hon. Christopher 
Shays (chairman of the subcommittee) presiding.
    Present: Representatives Shays, Kucinich, Maloney, Van 
Hollen, and Waxman.
    Staff present: Lawrence Halloran, staff director and 
counsel; J. Vincent Chase, chief investigator; Robert A. 
Briggs, analyst; Marc LaRoche, intern; Karen Lightfoot, 
minority communications director/senior policy advisor; David 
Rapallo, minority chief investigative counsel; Anna Laitin and 
Andrew Su, minority professional staff members; Earley Green, 
minority chief clerk; and Jean Gosa, minority assistant clerk.
    Mr. Shays. A quorum being present, the Subcommittee on 
National Security, Emerging Threats, and International 
Relations hearing entitled, ``Drowning in a Sea of Faux 
Secrets: Policies on Handling of Classified and Sensitive 
Information,'' is called to order.
    It has been said, bureaucracies always seek the path of 
least disclosure. During the cold war, the innate tendency to 
excessive secrecy was useful against the monolithic threat of 
Soviet military and industrial espionage. But today, against 
the polymorphic perils of stateless terrorism, the reflexive 
concealment of broad categories of official information harms 
more than enhances national security. Unreformed habits of 
secrecy blind us to the dispersed shards of information that, 
if linked, could reveal the enemy's shadowy plans.
    Recent reports of a secret program to reclassify previously 
declassified documents reflect the stubborn refusal of many 
cold warriors to move from the ``need to know'' to the ``need 
to share'' security paradigm. Operating since 1999, the program 
culled materials from public archives that had already been 
viewed, copied, or republished. Claiming the bureaucratic 
``equities,'' code for ``turf,'' had been ignored in the rush 
to declassify, the reclassifiers have taken tens of thousands 
of pages from the open files in what I would refer to as an 
arrogant and futile attempt to unwrite history. Many of the 
documents deal with issues having no current security 
implications. As a result, obvious non-secrets, like the 
stunning wrong estimate in 1950 that the Chinese would not 
enter the Korean War, are once again stamped ``secret.''
    This absurd effort to put the toothpaste back into the tube 
persists, despite the growing consensus supported by testimony 
before this subcommittee that from 50 to 90 percent of the 
material currently withheld should not be classified at all.
    The inbred penchant for over-classification has also 
spawned a perverse offspring in the form of a vast and rapidly 
growing body of pseudo-secrets withheld from public view in the 
name of national and homeland security.
    As this subcommittee learned in two previous hearings on 
post-September 11th barriers to information sharing, what is 
not classified can still be kept from the public through the 
use of ``Sensitive But Unclassified,'' designated as SBU, 
designations, like, for instance, ``For Official Use Only,'' 
[FOUO], or ``Official Use Only,'' [OUO], and there are 
countless others. The unchecked proliferation of documents 
bearing these and other access restriction labels is choking 
what the 9/11 Commission said should be, must be free-flowing 
pathways for critical information about an adaptable, 
decentralized foe.
    After our hearing last year, Mr. Waxman and I asked key 
cabinet departments how many documents they had shielded with 
SBU markings over the past 4 years. Claiming the task so 
burdensome and the numbers so large, they could not even 
venture an estimate.
    At the same time, we asked the Government Accountability 
Office [GAO], to examine policies and procedures on FOUO and 
OUO documents at the Department of Defense and Energy, 
respectively. Stamping something ``For Official Use Only'' 
should only mean someone has determined the information may 
meet the limited criteria for exemption from automatic public 
release under the Freedom of Information Act [FOIA]. But 
increasingly in this security-conscious era, SBU designations 
are being misused as an unregulated form of ``classification 
    I am going to digress a second. A case in point: The report 
from the Department of Homeland Security Inspector General 
bears this ominous-looking green cover warning recipients the 
document is ``For Official Use Only.'' The report is an audit 
of screening done on trucks carrying municipal solid waste from 
Canada into the United States. It is 18 pages long. The IG was 
good enough to send along an unclassified summary of what is 
really an already unclassified FOUO report. This is the 
summary. It is one page. So our conclusion is apparently there 
is a great deal the public should never know about Canadian 
garbage. Can you believe it?
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T9385.001
    [GRAPHIC] [TIFF OMITTED] T9385.002
    Mr. Shays. In a report released today, GAO finds a lack of 
clear standards governing the use of the FOUO and OUO labels. 
Almost anyone can apply the ``Official Use Only'' restriction 
and no one can make it go away unless someone happens to 
request the document under the FOIA, but then they have to know 
the document exists.
    Against a rising tide of global terrorism, we are drowning 
in a sea of our own faux secrets, hiding public information 
from its real owners, the public, behind spurious FOUO and OUO 
labels. To right the balance between the public's right to know 
and countervailing public interest in security and privacy, the 
habits of secrecy must give way to the culture of shared 
    Our discussion today is timely. This is, and I kid you not, 
Sunshine Week 2006, the second annual observance by 
organizations and individuals seeking greater openness in 
government. At the same time, policies and procedures on 
classification, reclassification, and designation of sensitive 
but unclassified material appear to be rushing headlong in the 
opposite direction.
    We are joined by two panels of highly qualified and 
knowledgeable witnesses, including the Archivist of the United 
States. We welcome him. We look forward to all their testimony 
and to a constructive discussion of what can be done to sustain 
and enhance the public's access to their information.
    [The prepared statement of Hon. Christopher Shays follows:]
    [GRAPHIC] [TIFF OMITTED] T9385.003
    [GRAPHIC] [TIFF OMITTED] T9385.004
    Mr. Shays. At this time, the chair would acknowledge we 
have both the ranking member of the full committee and the 
ranking member of the subcommittee and I would call on the 
ranking member of the subcommittee if he has a statement.
    Mr. Kucinich. I do have a statement, but I would more than 
be willing to defer to the ranking member of our full 
committee. Please, Mr. Waxman.
    Mr. Waxman. Well, thank you very much, Mr. Kucinich and Mr. 
Chairman, for the opportunity to make this opening statement. 
As Mr. Shays indicated, this week is openness and transparency 
for government because it is called Sunshine Week. These are 
the bedrock principles of our democracy.
    Unfortunately, sunshine rarely penetrates the inside of the 
Bush administration. They have a penchant for secrecy. It is 
legendary and the examples are numerous. The Vice President 
refused to reveal which campaign contributors and energy 
executives had special access to his energy task force. The 
President rolled back Reagan-era regulations on the release of 
Presidential records. The Department of Health and Human 
Services withheld estimates of the true cost of the Medicare 
prescription drug legislation. And the Defense Department 
redacted hundreds of Halliburton overcharges from audits given 
to the United Nations.
    This is not a new issue. In September 2004, I released a 
comprehensive report on secrecy in the Bush administration. The 
report found that the Nation's open government laws had been 
repeatedly eroded during the first 4 years of the Bush 
administration, while laws authorizing secret government action 
had been systematically expanded. These trends have continued 
and worsened in the months since I released that report.
    Last month, researchers discovered that the administration 
had been secretly removing thousands of previously classified 
documents that had been publicly available on the shelves of 
the National Archives. Some of these documents were more than 
50 years old and already had been published in books and 
    According to these researchers, one of the documents is a 
1948 memorandum regarding delays in implementing Project 
Ultimate, a CIA program to drop propaganda leaflets out of hot 
air balloons to the citizens of Eastern Europe, and this memo 
was published already in a 1996 State Department volume. Yet 
incredibly, this 58-year-old document has now been removed from 
the shelves, according to the researchers.
    There are a lot of questions about the administration's 
actions to which we don't have the answers. Who oversees this 
program? Under what legal authority are they operating? And why 
is the order governing this program evidently still classified? 
I hope we can begin to get answers to these questions at 
today's hearing.
    Another important issue we will consider today is the 
administration's abuse of designations such as ``Sensitive But 
Unclassified'' to block the public release of government 
information. Many of these designations have no basis in 
statute, no criteria for use, no limitations on who can 
withhold documents using these designations.
    Last year, Chairman Shays and I sought documents from three 
agencies, the Defense Department, State Department, and the 
Department of Homeland Security, that had been restricted as 
``Sensitive But Unclassified'' or ``For Official Use Only.'' To 
date, we have received none of these documents.
    It is particularly telling that in their responses, the 
agencies claimed they had no way to provide such information 
because they don't keep track of it. As another agency wrote, 
there is no regulatory or other national policy governing the 
use of ``For Official Use Only,'' this designation, as opposed 
to the controls on classified national security information.
    A year ago, I wrote to Chairman Shays about the abuses of 
these pseudo- or faux classifications. My letter described 
specific examples where documents were restricted from public 
dissemination because they would be embarrassing, not because 
they would jeopardize national security.
    Today, we are going to hear from the GAO about the results 
of its investigation into the management of these types of 
documents by two agencies, the Department of Energy and the 
Department of Defense. As GAO will testify, neither of these 
departments have clear policies regarding the designations and 
neither has adequate oversight of their use.
    Mr. Chairman, I have criticized the administration for its 
secrecy. I have even criticized the Republican Congress for 
failing to conduct meaningful oversight of the Bush 
administration. I think that has become a failure to do our 
constitutional responsibilities. It undermines accountability 
and it creates a climate in which secrecy flourishes. I think 
this is a hearing that is very much worth holding and I commend 
the chairman for calling the hearing. It won't undo the 
consequences of years of neglect, but I think it is an 
important step in the right direction and it illustrates how 
far things have gone, to the point now where it is so absurd 
that we can no longer ignore this business of classifying, 
reclassifying, declassifying, re-reclassifying, playing games 
with classifications, not for national security but simply to 
keep everybody in the dark, not just the enemies, but our own 
citizens and people in government itself.
    So I commend you for holding this hearing and I am pleased 
that we are going to hear from these witnesses scheduled today 
who can maybe bring a greater light to the dark spot in the 
whole issue of openness in government and sunshine. Thank you.
    Mr. Shays. I thank the gentleman.
    [The prepared statement of Hon. Henry A. Waxman follows:]
    [GRAPHIC] [TIFF OMITTED] T9385.005
    [GRAPHIC] [TIFF OMITTED] T9385.006
    [GRAPHIC] [TIFF OMITTED] T9385.007
    [GRAPHIC] [TIFF OMITTED] T9385.008
    Mr. Shays. At this time, the chair would recognize Mr. 
Kucinich, the ranking member of the committee.
    Mr. Kucinich. Thank you very much, Mr. Chairman. I might 
note to my good friend, Mr. Waxman, you just mentioned that 
they reclassified that information about dropping propaganda 
out of hot air balloons. I think the reason why they 
reclassified it is that they are still doing it here in 
Washington. [Laughter.]
    I want to thank the chairman for holding the third 
subcommittee hearing on this important oversight issue, and I 
want to note that this hearing is being held during what 
American newspaper editors have declared as National Sunshine 
Week, but it may be that the administration's song will be, 
``The Sun Will Come Out Tomorrow,'' not today, so it is 
imperative that Congress exercises its oversight responsibility 
and that we hold Federal agencies accountable for the millions 
of classification and declassification decisions they exercise 
every day.
    The results of our review can be measured through a variety 
of statistics, but in the end, we must ask two fundamental 
questions. First, do we still have an open government? And 
second, are we safer as a result of these classification 
decisions? I think the answer to both questions is no.
    By any measure, the administration has been classifying 
documents at a dizzying pace. Under this administration, more 
agencies have been given authority to classify documents and 
over 50 new security designations, including ``Sensitive But 
Unclassified'' and ``For Official Use Only'' have been created. 
Over 4,000 Federal employees now have original classification 
authority, and nearly $8 billion a year is spent to classify 
documents, $8 billion. Meanwhile, declassification has slowed 
to a crawl.
    But we must also look at what kind of information this 
administration is classifying. Is it sensitive, a threat to our 
national security if released to the public? According to 
researcher Matthew Aid, thousands of documents from the cold 
war era have been increasingly removed from the National 
Archives over the past 7 years and subsequently reclassified. 
Much of this trove consists of innocuous historical information 
from the cold war era and is being kept from the public's view. 
According to the Washington Post, even documents about the 
Cuban missile crisis, one of the most important events in our 
Nation's history, are still being denied to historians. It is 
well past the 25-year limit in which most Federal documents 
have to be declassified.
    Declassification is an essential tool to watchdog the 
actions of our government. For example, documents declassified 
just last year concern Luis Posada Carriles, a CIA operative 
involved in the 1976 bombing of a Cubana Airlines flight that 
killed 73 passengers. They show the complicity and support our 
government gave to his violent acts. After escaping from a 
Venezuelan prison in 1985, Posada worked in El Salvador on the 
Iran-Contra program and he admitted to a string of hotel 
bombings in Havana and various assassination attempts of Fidel 
    Last year, Mr. Posada snuck into the United States and is 
attempting to seek asylum here. Despite requests from both 
Venezuela and Cuba to extradite him, the Department of Homeland 
Security has refused to deport him. In effect, the Bush 
administration--the Bush administration--is harboring an 
international terrorist, and documents released by the National 
Security Archives show the full extent of CIA involvement in 
those operations.
    If this is how the administration treats so-called 
historical information, how do you think they treat materials 
that could inform public policy debates today or protect our 
Nation against terrorist threats? That is one of the reasons, 
Mr. Chairman, why I introduced a resolution of inquiry on the 
Dubai port deal. We want to know how it came about. Maybe the 
deal is dead, maybe it is not, but the public has a right to 
know how it came about in the first place and the only way you 
can do that is to get the public records.
    In April 2004, only 1 day before Secretary Rice was forced 
to testify before the 9/11 Commission, the administration 
suddenly declassified a key memo from former Counterterrorism 
Chief Richard Clarke to Secretary Rice warning her about the al 
Qaeda threat and calling for a meeting of principal security 
heads. Mr. Clarke's memo had been written in January 2001, more 
than 9 months before the tragic attacks.
    Let me give you another example. Last week, the Department 
of Justice released e-mails from David Kris, an Associate 
Deputy Attorney General with the knowledge of the 
administration's justifications for its domestic wiretapping 
program. Mr. Kris argues that the Department's arguments were 
weak, had a slightly after-the-fact quality to them, and even 
surmised that they reflected the Vice President's philosophy 
that the best defense is a good offense. Yet only following a 
Federal court order and a Freedom of Information lawsuit did 
the Justice Department search for and release unclassified 
documents that relate to justification of the eavesdropping 
program, and after 2\1/2\ months of searching, the Justice 
Department said it found only some e-mails and transcripts of 
public interviews with the Attorney General. The rest of the 
material apparently still remains classified.
    Finally, a March 3rd Wall Street Journal editorial 
entitled, ``Open the Iraq Files'' highlights the fact that 
there are millions of documents captured in Iraq and 
Afghanistan, collectively referred to as the Harmony Program, 
which have now been classified. The Harmony Program supposedly 
contains information about Saddam Hussein's so-called weapons 
programs, about the Niger uranium connection, and even about 
Iraq's support of a terrorism program and lists of potential 
terrorists threats. These documents would undoubtedly better 
inform the American public and elected officials as we continue 
to debate our foreign policy in those parts of the world, yet 
you can bet they won't see any light of day anytime soon.
    So our Nation is neither safer nor more open. We spend more 
and more each year to classify documents and declassify fewer 
and fewer Federal records. Moreover, the Government 
Accountability Office has told the Congress, and what 
journalists and historians report to us, is that implementation 
of classification policy is inconsistent. Training in 
classification procedures and Freedom of Information policies 
differ across Federal agencies. Review of classification 
decisions, supervision of officials, and cross-agency 
communication are sparse, at best.
    Mr. Chairman, we need to take another look at the laws and 
regulations that guide classification policies. I believe the 
current system is out of control. I hope we can work together 
in a bipartisan manner to reverse the momentum that we lost. 
Let us make sure sunshine is present throughout the Federal 
Government, not just for 1 week, but that it shines forth each 
and every day.
    Thank you, and I want to welcome the witnesses, and I have, 
without objection, various documents that I want to submit into 
the record.
    Mr. Shays. I thank the gentleman.
    [The prepared statement of Hon. Dennis J. Kucinich 















































































































































    Mr. Shays. At this time, the chair would recognize Mr. Van 
    Mr. Van Hollen. Thank you, Mr. Chairman. I want to thank 
you and Mr. Kucinich for holding these hearings and thank the 
witnesses for being here.
    The latest episodes we have seen of the administration 
scrambling to reclassify information that had been declassified 
is just the latest sign of an obsession with secrecy over the 
public interest. I think it is amazing now that an individual 
working for the government could be criminally liable for 
providing to a Member of Congress in an unclassified setting a 
document that had been published by the U.S. Government. That 
turn of events, it seems to me, shows how we have our policies 
just turned on their head.
    I would just like to very briefly read from the 9/11 
Commission, which was a bipartisan commission that identified 
this over-classification problem as a national security 
problem, where they stated that the security concerns need to 
be weighed against the cost. ``Current security requirements 
nurture over-classification and excessive compartmentalization 
of information among agencies. Each agency's incentive 
structure opposes sharing, with risks but few rewards for 
sharing information. No one has to pay the long-term costs of 
over-classifying information, though these costs, even in 
literal financial terms, are substantial.'' There are no 
punishments for not sharing information, and they go on to talk 
about this issue.
    It seems to me that from a pure national security 
perspective, in this day and age where we learned from over-
compartmentalization before September 11th the dangers to our 
national security of people not talking to each other, we 
should learn the lessons of more sharing of information. 
Instead, what we have seen is an effort to use the 
classification system not to hide information from our enemies, 
but in many cases, to hide embarrassing analyses and facts from 
the Congress and the American people.
    So I hope, Mr. Chairman, that we will continue to explore 
this area. The other thing that, of course, I think, rankles 
many people is not just the classification process, but the 
random ad hoc declassification process, where all of a sudden 
you read that the administration has released classified 
information selectively for their own political benefit. I 
mean, we read now in the Valerie Plame case, oh, yes, well, 
they were able to leak classified information to the press. 
Why? Because the Vice President has the ability to declassify 
whenever he decides to declassify something. That breeds 
cynicism in the system and public distrust. If we think that 
the administration or any executive branch agency is playing 
politics with the release of classified information, is playing 
politics with the classification of information, it will 
undermine the public's trust in our entire system and breed 
increasing cynicism, and I think that is what we are seeing, 
Mr. Chairman.
    So hopefully, we can begin to shine a little sunshine on 
this and reverse that cynicism. Thank you.
    Mr. Shays. I thank the gentleman.
    At this time, the chair would recognize the gentlelady from 
New York, Mrs. Maloney.
    Mrs. Maloney. Again, I want to thank the Subcommittee on 
National Security for their continued work on really sensitive 
issues of our country. I want to cite the chairman's efforts on 
the creation of the 9/11 Commission report and then working 
with me and many others to author the recommendations into law 
and to finally pass it.
    We all understand that classification is necessary. 
Maintaining access to sensitive information helps ensure the 
safety of all Americans. No one can argue that. However, over 
the last few years, a number of us have become very concerned 
with the dramatic surge in what is being classified and the 
advent of new pseudo-classifications of information.
    At the last hearing the subcommittee held on the subject, I 
held up a poster of a redacted copy of a staff report from the 
9/11 Commission. Black ink was practically poured over the 
whole document. What was amazing about the redactions on this 
poster were that they clearly covered up public testimony that 
was available on the Internet. Holding them side to side, we 
found one redacted line that read, literally--you can't make 
this stuff up--this was the line: ``This, this, this, and 
this.'' That was redacted. It was more bad English than 
sensitive information, and that is our concern here.
    There is a huge upswing in classified information, a result 
of more information that needs to be classified or is it just 
really more convenient to keep it classified? Is information 
kept classified because it is embarrassing? That is another 
concern. Or inconvenient?
    We know that under an Executive order signed by President 
Clinton, we were able to declassify 864 million documents, but 
another Executive order by the Bush administration has halted 
these efforts by allowing officials to classify information 
even when there is significant doubt that this information 
needs to be classified.
    I know that I have had to fight for the release of 
information held by government. I had a bill in on the Nazi War 
Crimes Disclosure Act. It has been years since World War II. It 
became law in 1998 and we really disclosed more information 
than we have had since the Nuremberg trials, and this was 
important for us to understand many things, not only our 
history but now to address informers and security matters in 
today's troubled times.
    I am very concerned about the uniformity, the point that my 
colleague made that some ridiculous items are classified and 
then some information that may help a political cause, such as 
the Valerie Plame case, is released.
    I also am concerned about that there is no review. Say you 
get a document back, like the 9/11 Commission report that was 
all redacted. How do we appeal to see if this is really, truly 
something that should be redacted or not? There is no appeal 
process. I think that the right of citizens to have access to 
their government files when this is appropriate helps build 
strength and support for our democracy.
    So I want to thank Chairman Shays for holding this hearing 
and really for his continued work on it. I think it is 
important. I think it is an important part of our government 
and I think it does need to be reviewed. I find it 
infuriating--can I add this? I have constituents who come to me 
and they have tried to get documents from the EPA or whatever. 
The document comes back completely redacted. I mean, what kind 
of response is that? Who do they appeal when it concerns their 
family farm or their family business? I think this is a serious 
matter and I appreciate the chairman looking at it.
    Mr. Shays. I thank the gentlelady from New York.
    [The prepared statement of Hon. Carolyn B. Maloney 




    Mr. Shays. Let me just take care of a few business items 
before we swear you in, and thank you all for your patience.
    I ask unanimous consent that all members of the 
subcommittee be permitted to place an opening statement in the 
record and the record remain open for 3 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, 
and without objection, so ordered.
    I ask even further unanimous consent that the following be 
made part of the record: A GAO report titled ``Managing 
Sensitive Information: Departments of Energy and Defense 
Policies and Oversight Could Be Improved;'' George Washington 
University National Security Archive report, ``Pseudo Secrets: 
Freedom of Information Audit of Sensitive But Unclassified 
(SBU) Policies in the U.S. Government;'' a letter from Senator 
Jim Bunning Concerning the improvement of storage of classified 
information by defense contractors; and finally, a letter from 
Mr. Lamar Waldron from Marietta, Georgia, concerning the 
reclassification of government records. Without objection, the 
reports and correspondence will be made part of the record.
    [Note.--The GAO report entitled, ``Managing Sensitive 
Information, Departments of Energy and Defense Policies and 
Oversight Could be Improved,'' may be found in subcommittee 
    [The information referred to follows:]
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    Mr. Shays. We have two panels today and I will introduce 
the first panel. We have Professor Allen Weinstein, Archivist 
of the United States, National Archives and Records 
Administration; Mr. J. William Leonard, Director, Information 
Security Oversight Office, National Archives and Records 
Administration; Ms. Davi M. D'Agostino, Director, Defense 
Capabilities and Management, U.S. Government Accountability 
Office; Mr. Robert Rogalski, Acting Deputy Under Secretary of 
Defense, Counterintelligence and Security, Department of 
Defense; and Mr. Glenn S. Podonsky, Director, Office of 
Security and Safety Performance Assurance, U.S. Department of 
Energy. If all of you would stand, I will swear you in as is 
our practice.
    Raise your right hands.
    [Witnesses sworn.]
    Mr. Shays. For the record, all the witnesses have responded 
in the affirmative. We again thank you for your patience in 
hearing our perspectives. It hopefully will help you sense 
where we are coming from and the kinds of points that you need 
to make.
    As you know, we have a 5-minute rule, but I roll over the 
clock if you go over. I just don't want you to think you have 
to stop right at 5, but as close to 5 as you can will be 
appreciated, and we will start with you, Professor.

                   U.S. DEPARTMENT OF ENERGY


    Mr. Weinstein. Chairman Shays, Mr. Van Hollen, members of 
the subcommittee, I wish to thank you for holding this very 
important hearing today on issues relating to information 
access restrictions and for inviting me to testify. I am 
especially pleased to be joined this afternoon as a witness 
before the subcommittee by my able colleague, Bill Leonard, who 
heads the Information Security Oversight Office [ISOO], an 
office within the National Archives and Records Administration. 
Mr. Chairman, I appreciate the opportunity for Mr. Leonard and 
myself to share with you and other members of the subcommittee 
NARA's response to the situation which we have confronted in 
the past several weeks.
    In late February, in response to complaints received from a 
group of historians and researchers regarding agency 
classification activity which has resulted in a number of 
historical documents being withdrawn from the open shelves at 
the National Archives and Records Administration, I began 
several actions as part of a review of the reclassification of 
    Weeks ago, the Information Security Oversight Office 
[ISOO], initiated an audit to identify the number of records 
withdrawn from the open shelves over the past several years, to 
identify who initiated the withdrawal action, and to identify 
the authorization and justification for the withdrawal. The 
audit involves consultation with both affected agencies and 
with members of the research community. The audit will result 
in a public report designed to provide the greatest feasible 
degree of transparency to this classification activity, and the 
audit will be available within the next 60 days.
    ISOO will issue annual updates providing insight into any 
similar activity conducted in the future, and these updates 
will be included in ISOO's annual report to the President on 
implementing Executive Order 12958, as amended.
    Mr. Chairman, these immediate steps on my part were 
followed by consultations with concerned researchers, after 
which I announced additional actions as part of the ongoing 
investigation into the withdrawal of previously declassified 
records at the Archives. These steps included the imposition of 
a moratorium on other agency personnel identifying for 
withdrawal for classification purposes any--I stress any--
declassified records currently on the public shelves at the 
National Archives until our audit is complete.
    I also called for a summit with national security agencies 
involved with these withdrawal efforts. At the summit with 
Federal agency officials on March 6th, I stressed the 
commitment of the National Archives to maintain a balanced 
approach by acknowledging the importance of protecting national 
security while at the same time recognizing the public interest 
in having archival records maximally available. I stressed the 
commitment of the National Archives to continue to work 
cooperatively with the agencies while urging the agencies to 
move swiftly on returning documents back to the open shelves 
when appropriate. I stressed also the need to consider creating 
a National Declassification Initiative to replace the current 
agency-centered approach to declassification. This new 
initiative, the Centralized Declassification Program, would be 
coordinated by the National Archives.
    Representatives of the Federal agencies who attended this 
summit unanimously agreed to support the moratorium on 
identifying for withdrawal any new material currently on the 
open shelves at the Archives. They were also supportive in 
principle of the concept of the National Declassification 
    Mr. Chairman and members of the subcommittee, Bill Leonard 
will provide further details concerning NARA's and specifically 
ISOO's response to the challenges of implementing our recent 
directives and proposals.
    As the Archivist of the United States, however, I am here 
today to bear witness to the seriousness with which the 
National Archives treats its responsibilities in this area. At 
the National Archives, the core goals of our mission statement 
commit us to preserving and processing records for opening to 
the public as soon as legally possible and providing prompt, 
easy, and secure access to our holdings.
    Mr. Chairman, members of the subcommittee, I place an 
extremely high value on maintaining public credibility, trust, 
and respect for the process of classification and the process 
of declassification, respect which is earned by responsible 
stewardship, including efforts to ensure that no information--I 
stress, no information--is withheld unnecessarily.
    Thank you, Mr. Chairman and members of the subcommittee, 
for your time and attention.
    Mr. Shays. Thank you, and let me take this opportunity to 
thank you for all of your good work.
    Mr. Weinstein. Thank you.
    Mr. Shays. Thank you, sir.
    [The prepared statement of Mr. Weinstein follows:]
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    Mr. Shays. Mr. Leonard.


    Mr. Leonard. Thank you, Mr. Chairman, Mr. Waxman, Mr. Van 
Hollen, other members of the subcommittee. I want to thank you 
for holding this hearing this afternoon on issues relating to 
information access restrictions as well as for inviting me to 
testify today.
    The classification system and its ability to restrict the 
dissemination of information, the unauthorized disclosure of 
which would cause harm to our Nation, its citizens, and our 
institutions, represent the fundamental tool at the 
government's disposal to provide for the common defense. The 
ability to surprise and deceive the enemy can spell the 
difference between success and failure on the battlefield. 
Similarly, it is nearly impossible for our intelligence 
services to recruit human sources, who often risk their lives 
aiding our country, which obtain assistance from other 
countries' intelligence services, unless such sources can be 
assured complete and total confidentiality. Likewise, certain 
intelligence methods can work only if the adversary is unaware 
of their existence. Finally, the successful discourse between 
nations often depends upon constructive ambiguity and plausible 
deniability as the only way to balance competing and divergent 
national interests.
    As with any tool, the classification system is subject to 
misuse and misapplication. When information is improperly 
declassified or is not classified in the first place, although 
clearly warranted, our citizens, our democratic institutions, 
our homeland security, our interactions with foreign nations 
can be subject to potential harm. Conversely, too much 
classification, or the failure to declassify information as 
soon as it no longer satisfies the standards for continued 
classification, or inappropriate reclassification, 
unnecessarily obstructs effective information sharing and 
impedes an informed citizenry, the hallmark of our democratic 
form of government.
    In the final analysis, inappropriate classification 
activity of any nature undermines the integrity of the entire 
process and diminishes the effectiveness of this critical 
national security tool. Consequently, inappropriate 
classification or declassification puts today's most sensitive 
secrets at needless increased risk.
    Recent attention focused on withdrawal of previously 
declassified records from the open shelves of the National 
Archives exemplifies how the classification system can be 
misapplied. While an audit of this activity by my office is 
still underway and I do not want to presuppose final results, 
at this time, we see the need to address a number of issues 
that I have outlined in detail in my written statement.
    In response to these challenges, I am pleased to report 
that the principal agencies involved in conducting 
classification reviews of records accessioned into the National 
Archives have agreed in principle to create a pilot National 
Declassification Initiative with the objective of more 
effectively integrating the work they are doing in this area. 
This initiative is intended to address the policies, 
procedures, structure, and resources needed to create a more 
reliable executive branch-wide declassification program. While 
the details of this proposal need to be further developed and 
implemented during the weeks and months to come, I do 
anticipate significant progress in this area.
    As Director of ISOO, I believe the keys to success of a 
National Declassification Initiative are to ensure that it has 
the authority, the expertise, and the resources to ensure that 
decisions to either declassify or to continue the 
classification of historically valuable permanent records of 
the Federal Government are appropriate and reflect the best 
informed judgment of all parties. There are a number of 
examples where a concerted executive branch-wide approach has 
worked in the past.
    Furthermore, I believe that a National Declassification 
Initiative could assist in the development of standardized 
guidelines and protocols, provide a forum for agencies to 
better understand the various dynamics entailed in assessing 
and determining the appropriate action to take following a 
declassification review, and assure greater consistency in 
results. This initiative, representing a confederation of 
existing agency authorities, expertise, and resources, could 
also help fill critical training voids for agency personnel 
involved in declassification reviews. Ideally, we would 
eventually streamline the multiple independent agency reviews 
of the same material and therefore be substantively more 
efficient and effective than the current declassification 
review process.
    Again, I thank you for inviting me here today, Mr. 
Chairman, and would be happy to answer any questions you may 
    Mr. Shays. Thank you very much.
    [The prepared statement of Mr. Leonard follows:]
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    Mr. Shays. Ms. D'Agostino.


    Ms. D'Agostino. Good afternoon, Mr. Chairman and members of 
the subcommittee. I am pleased to be here today before you to 
discuss GAO's work on how the Departments of Energy and 
Defense, DOE and DOD, manage information that is unclassified 
but sensitive.
    DOE and DOD use the designations, as you mentioned, Mr. 
Chairman, OUO and FOUO, respectively, to refer to this 
information. My testimony is based on our report that you 
released today here at this hearing on managing sensitive 
information at those Departments. Those Department base their 
programs, in large part, on the exemptions under the Freedom of 
Information Act [FOIA], that deal with information that is not 
national security classified but otherwise may be exempt from 
public release.
    In this report, we reviewed the policies, procedures, and 
criteria the Departments use to manage OUO and FOUO 
information. We also looked at the Departments' training and 
oversight programs related to this and determined the extent to 
which those programs provide assurances that personnel properly 
identify and mark information.
    In summary, DOE and DOD both have policies in place to 
implement their programs, but our analysis of these policies 
showed a lack of clarity in some key areas that could lead to 
inconsistencies and errors. First, DOD policies remain unclear 
as to which office is in charge of DOD's FOUO programs, since 
responsibilities shifted in October 1998 to what is now the 
Under Secretary of Defense for Intelligence. DOD officials have 
told us that at the end of January 2006, they started to 
coordinate a revised regulation that will emphasize management 
of the FOUO program.
    Second, unlike DOE requirements, DOD policies do not 
require staff marking a document to note the FOIA exemptions 
used as a basis for designating it FOUO. In our view, if DOD 
required personnel to take the extra step of including the 
reason they are marking the document FOUO at the time they 
create it, it would help ensure that the personnel has made a 
thoughtful determination and improve the oversight of the 
    Third, both Departments' policies are unclear regarding 
what point a document should be marked as OUO or FOUO. If a 
document might contain such information but is not marked when 
it is created, you run the risk that the document might be 
mishandled and that risk increases.
    Fourth, neither Departments' policies identify what would 
be an inappropriate use of the FOUO or OUO designation. Without 
such guidance, the Departments cannot be confident that their 
personnel will not use these markings to conceal mismanagement, 
inefficiencies, or administrative errors, or to prevent 
    Finally, neither Department has an agency-wide requirement 
that personnel be trained before they designate documents as 
OUO or FOUO, nor do they conduct oversight to ensure that 
information is appropriately identified and marked. Without 
training or oversight, neither Department can assure itself 
that personnel are complying with their own policies. We 
recommended that both Departments clarify their policies and 
guidance in these areas and establish training and oversight 
systems to conduct oversight periodically.
    DOE and DOD agreed with most of our recommendations in 
their comments on our draft report. DOD did disagree that 
personnel designating a document as FOUO should also mark the 
document with the FOIA exemption or the reason that may apply. 
We continue to believe this recommendation has merit because it 
would cause personnel to make a more thoughtful determination 
before marking the document, and since it is provisional, it 
would not prejudice a separate independent decision to release 
or deny the release of a document under a FOIA request.
    In closing, the lack of clear policies and effective 
training and oversight in DOE's and DOD's programs could result 
in over- and under-protection of unclassified yet sensitive 
government documents. Having clear policies and procedures in 
place can mitigate the risk of program mismanagement and help 
the Departments assure the OUO-FOUO information is 
appropriately marked and handled.
    Mr. Chairman, members of the subcommittee, this concludes 
my oral statement. I would be happy to respond to any 
    Mr. Shays. Thank you. There will be questions. Thank you so 
    [The prepared statement of Ms. D'Agostino follows:]
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    Mr. Shays. Mr. Rogalski.


    Mr. Rogalski. Good afternoon, Chairman Shays and 
distinguished members of the subcommittee. I appreciate the 
opportunity to meet with you today to discuss how DOD handles 
both classified and sensitive information.
    Within DOD, my office is responsible for developing 
policies that address both controlled unclassified information, 
which we refer to as CUI, and classified national security 
information. This responsibility is executed on behalf of the 
Secretary of Defense and the Under Secretary of Defense for 
Intelligence, two of the Department's designated senior agency 
officials in accordance with Executive Order 12958, as amended, 
Classified National Security Information.
    As I stated earlier, the Department uses a generic term, 
controlled unclassified information, to refer to all 
unclassified information that has been determined to require, 
for various reasons, some type of protection or control. CUI 
markings such as FOUO serve to inform DOD personnel that the 
information may qualify for withholding from public release and 
require some degree of safeguarding. It does not mean it is 
automatically withheld. It must first go through a review 
process before a release or denial determination is made.
    We agree with the GAO that there are areas where our FOUO 
program could be strengthened. As they have recommended, we are 
updating our CUI policy on how we handle FOUO and are improving 
training within the Department.
    Classification of national security information is, of 
course, more of a challenge because of the balance that must 
take place between the need for proper safeguarding and the 
need for openness that is fundamental to our society. While we 
understand the need for openness, we also have a responsibility 
to the American public to protect information that ensures our 
continued freedom. We in the Department also have the added 
challenge of ensuring sound classification principles are 
applied in a high-tempo operational environment.
    We may sometimes take a more conservative approach to 
classification so as not to endanger personnel and operations. 
That is why the Department is committed to ensuring that our 
classifiers take their responsibilities seriously, are well 
trained, and are accountable for their actions.
    There are a number of things the Department has done to 
clarify and emphasize classification management. The Secretary 
of Defense and the Under Secretary of Defense for Intelligence 
have both conveyed their personnel commitment to a strong 
information security program. Classification authorities have 
been reminded of their responsibility to properly classify 
information. Training requirements have been issued, and 
positions requiring original classification authority are 
subject to continuous review with the goal of reducing those 
positions. Additionally, since fiscal year 2004, DOD has 
reduced original classification decisions approximately 33 
    The DOD Director of Security meets quarterly with senior 
security personnel from the military departments, defense 
agencies, and combatant command and emphasizes, among other 
things, their responsibility to have a strong classification 
management program. The Defense Security Service Academy is 
working on new training courses to enhance classification and 
declassification, to include computer-based training that will 
be more accessible to a larger audience. We just conducted a 
DOD-wide security managers' conference last week where we were 
able to convey to an audience of approximately 800 DOD security 
professionals updates and reminders on classification 
management and CUI policies that they will take back to their 
    I would like to add that we support the National Archives 
on recent actions that have been taken with regard to the 
declassification effort. We support the moratorium on pulling 
records off the open shelves until ISOO completes their audit. 
We also support establishing a standard protocol for pulling 
records. We believe establishing a National Declassification 
Center will facilitate uniform declassification decisions. 
Obviously, authorities and resources will need to be addressed.
    In closing, the Department has solid policies in place that 
are relevant and upon which we can continue to build. We have 
accomplished much to bring education and emphasis to important 
classification management issues to reduce over-classification. 
We will reemphasize current markings and review of CUI-FOUO. 
The Department takes its responsibility to protect information 
very seriously and strives to achieve the right balance between 
proper safeguarding and the need for openness in our democracy.
    Again, I thank you for the opportunity to brief you on the 
Department's policies and look forward to the discussion on 
this important topic.
    Mr. Shays. Thank you, sir.
    [The prepared statement of Mr. Rogalski follows:]
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    Mr. Shays. Mr. Podonsky.


    Mr. Podonsky. Thank you, Mr. Chairman and members of the 
subcommittee, for inviting me to testify regarding the 
Department of Energy's policies and practices for the 
protection of sensitive unclassified information as they relate 
to the information contained in the GAO report, ``Managing 
Sensitive Information: Departments of Energy and Defense 
Policies and Oversight Could Be Improved.''
    Classified and other sensitive information are among the 
national security-related assets in our custody that we protect 
in accordance with the requirements of law, regulations, and 
national policies. After reviewing the GAO report, the 
Department agrees with all of the findings contained. They were 
accurate and we concur that the report's recommendations should 
be implemented.
    Before I discuss issues of specific interest to this 
subcommittee, I would briefly like to describe my office's 
responsibilities in this area. Our Federal and contractor-line 
managers at all levels of the Department are responsible for 
ensuring that our information is properly protected. My office 
has a broad range of responsibilities associated with 
protecting information within the Department. These include 
developing Department-wide information protection policies 
addressing the identification, marking, and protection of 
classified information and the various categories of sensitive 
unclassified information; conducting formal document control 
training; providing technical assistance to sites to improve 
their information protection programs; and providing 
independent oversight to assess the effectiveness of the 
information protection programs throughout the Department.
    In 2003, as a direct result of the recommendation by the 
Commission on Science and Security, known as the Hamre Report, 
the Department established its first agency-wide process for 
identifying and protecting sensitive information that we call 
``Official Use Only,'' [OUO]. This information is defined as 
classified information that has the potential to damage 
governmental, commercial, or private interests and which may be 
exempt from public release under the FOIA.
    The purpose of our OUO program is to provide a means to 
control sensitive unclassified information and protect it from 
inappropriate disclosure; limit information protected from 
disclosure to that which is legally exempt under FOIA; provide 
guidance for consistent and accurate identification of OUO 
information; standardize the identification, marking, and 
protection of OUO information; and facilitate the appropriate 
sharing of unclassified information.
    Access to OUO information is not overly restrictive. OUO 
information may be provided to individuals inside or outside 
the Department that need the information to perform their job 
or other DOE-authorized activity. Since OUO information is not 
classified, a security clearance is not required. The only 
requirement is a need to know. Overall, our OUO program is 
intended to provide a formal, workable process to identify, 
control, and protect certain sensitive unclassified information 
while making that information readily available for legitimate 
    We believe our program will be even more effective with the 
implementation of the GAO recommendations contained in their 
report. As previously stated, we found that the report was a 
fair evaluation of the Department of Energy's program and the 
findings to be accurate as well as useful.
    In response to the GAO report, we are revising our order 
and manual to define inappropriate uses of OUO designation. We 
are revising our program directives to require specific initial 
and refresher training, clearly identify the scope and content 
of that training, and assign responsibilities for ensuring that 
the training is developed and conducted. We are developing a 
process to evaluate the identification, marking, and protection 
of OUO information and incorporate that process into our 
independent oversight program. We are also modifying our policy 
directives to require the incorporation of similar evaluations 
into line management, field oversight, and local self-
assessment activities.
    Turning just for a moment to our congressionally mandated 
effort to review documents released to the National Archives by 
other agencies under the Atomic Energy Act. The Department of 
Energy controls the dissemination and declassification of 
restricted data, which can be defined as nuclear weapon design, 
nuclear material production, and naval reactor information, 
loosely. We have dual responsibility with the Department of 
Defense for formerly restricted data, which is information 
concerning the military utilization of nuclear weapons.
    During our review of records at NARA, we have never 
reclassified information that was declassified. The restricted 
data and formerly restricted data information that we found was 
classified at the time of the Executive Order 12958, classified 
national security information when it was issued, and remains 
classified. We have ensured that these documents are properly 
marked and protected as restricted data or formerly restricted 
    In conclusion, Mr. Chairman, we want to assure you and the 
members of the subcommittee, the Department strives to protect 
all sensitive information in our possession as required and 
permitted by applicable laws, regulations, and Executive 
orders. Our OUO program is designed to provide a reasonable 
level of protection to sensitive unclassified information while 
still accommodating our own and others' needs to use that 
information to conduct business and to address the legitimate 
and recognized needs of the public to have access to that 
information. We believe our responses to the GAO 
recommendations will strengthen our program's ability to 
achieve those goals. Thank you.
    Mr. Shays. Thank you, gentlemen.
    [The prepared statement of Mr. Podonsky follows:]
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    Mr. Shays. I am going to call on Mr. Waxman first, with the 
concurrence of Mr. Kucinich, but I just want to say for the 
record, I think we have a huge problem and I will be looking to 
you all to help us figure out how we get headed in what I would 
call the right direction. So I would like to come out of this 
knowing what we could be doing about it.
    At this time, the chair would call on Mr. Waxman. Mr. 
Waxman, you will have the floor for 10 minutes.
    Mr. Waxman. Thank you very much, Mr. Chairman.
    I want to focus my questions on the allegations of 
researchers who claim that the administration has been secretly 
removing documents from the National Archives that have already 
been declassified. Mr. Weinstein and Mr. Leonard, can you help 
us understand what is going on here? What agency is in charge 
of this program today?
    Mr. Weinstein. That is a difficult question to answer. Let 
me explain why, Mr. Waxman. There has been speculation about 
the National Archives having secret agreements with various, 
multiple Federal agencies authorizing the re-review of 
declassified documents. I would like to clarify for the record 
that to the best of the knowledge of the Archivist, NARA has 
one classified Memorandum of Agreement pertaining to the issue 
of re-review, one.
    The Memorandum of Agreement [MOA], is with a component of 
the Department of Defense and remains classified. The MOA is 
procedural in nature and deals with such things as proper 
archival procedures for handling accessioned records, recording 
any decisions made by the agency, and ensuring that the records 
are managed according to NARA requirements, and I cannot say 
anything more about the MOA, which gets to the heart of your 
question, I am afraid, in an open session because it contains 
classified information.
    Mr. Waxman. So what----
    Mr. Shays. Are you sure it is actually sensitive 
    Mr. Weinstein. I was told classified, Mr. Chairman.
    Mr. Waxman. Therefore, would one assume it is the 
Department of Defense that is taking the action, since that is 
the only group you have a Memorandum of Understanding?
    Mr. Weinstein. As I recall your question, it went to the 
heart of who was in charge of this process.
    Mr. Waxman. Who are the agencies in charge of the program, 
the whole process of reclassifying these documents?
    Mr. Weinstein. That is what this audit is determined to 
find out, and if you can bear with us until the audit is 
completed, I think we will have an answer that will----
    Mr. Waxman. So we don't know who it is, but can you tell us 
what authority they are operating under to pull these documents 
from the shelves? These documents were already declassified. 
What authority do they have to do this?
    Mr. Leonard. Just to buildupon what Professor Weinstein 
indicated, in addition to the Department of Defense activity, 
Mr. Podonsky indicated that the Department of Energy has been 
conducting re-review of material at the National Archives since 
the late 1990's, as well as on occasion the Central 
Intelligence Agency has done it, as well, too.
    If there is a common thread, this does not address every--
    Mr. Waxman. Let me ask the question----
    Mr. Leonard. Sure.
    Mr. Waxman [continuing]. And then we will see if you have a 
direct answer to the question, and if you don't, why. We don't 
know exactly who is doing this and you have not been able to 
respond to us under what authority they are doing it.
    Mr. Leonard. I was just about to get to that, Mr. Waxman.
    Mr. Waxman. OK.
    Mr. Leonard. The authority that they are doing it under is 
under the framework of the Executive order. Only agencies that 
have originated the information have the authority to 
declassify it. So one of the most common situations that has 
arisen is where, for example, if an agency declassifies its own 
records but it contains information that belongs to another 
agency and they did not afford that other agency the 
opportunity to review those records prior to the 
declassification action, pursuant to the order, that is not 
classification under proper authority, and so----
    Mr. Waxman. So this isn't pursuant to a Memorandum of 
Understanding with the National Archives. It is pursuant to an 
Executive order?
    Mr. Leonard. Yes, sir.
    Mr. Waxman. OK. Now, it is hard to still, even with that 
explanation, understand how these examples we have of records 
from 50 years ago would be changed----
    Mr. Leonard. The simple answer is they don't. The exemplars 
that were provided to my office early this year as well as that 
has received coverage in the press, those exemplars clearly do 
not adhere to the classification standards of the order and are 
    Mr. Waxman. Well, let me----
    Mr. Leonard [continuing]. And--I am sorry----
    Mr. Waxman [continuing]. Turn to the questions I have about 
the audit itself that you are going to be doing.
    Mr. Weinstein. Congressman, could I respond just a half-a-
second to that?
    Mr. Waxman. Yes.
    Mr. Weinstein. In response to Mr. Leonard's advice that he 
has just given to you, to me, and in response to the situation, 
I took the actions which I took, which were based obviously on 
the fact that I could see no sensible use in classifying things 
that are 50 years old that have already been declassified.
    Mr. Waxman. Well, you called a halt to any further removal 
of documents while you conduct your audit, is that right?
    Mr. Weinstein. Yes, that is correct.
    Mr. Waxman. What was it that led you to decide to take this 
measure? Why did you conclude that these agencies should stop 
what they are doing until you examined their actions?
    Mr. Weinstein. Well, to begin with, Congressman, I wasn't 
aware of their actions and it was important for me to become 
aware of those actions. I learned about their actions from the 
New York Times, the way the American public did. Having been 
Archivist for a year, that struck me as being a rather 
impossible and absurd way to learn to know what is happening at 
your own agency and I acted immediately.
    Mr. Waxman. So you acted immediately and you stopped any 
removal of documents, and I am certainly pleased you are 
investigating the matter. Researchers are saying that there is 
an interagency memorandum and the only one that you are aware 
of is the one that the National Archives has with the 
Department of Defense?
    Mr. Weinstein. Component of the Department of Defense, yes, 
    Mr. Waxman. And what does that Memorandum of Understanding 
    Mr. Weinstein. Well, as I indicated, Congressman, I would 
be happy to discuss this in a closed session, but 
unfortunately, for this discussion, it contains classified 
information which I am not prepared to discuss in open session.
    Mr. Waxman. And why is it classified?
    Mr. Weinstein. Pardon?
    Mr. Waxman. Why is it classified?
    Mr. Weinstein. Why is it classified?
    Mr. Waxman. Yes.
    Mr. Weinstein. I don't know.
    Mr. Waxman. Is there something in the Memorandum of 
Understanding itself that will harm national security if it 
gets out?
    Mr. Weinstein. I think I probably have to stand by my 
previous answer, Congressman.
    Mr. Waxman. That you can't say that in open session.
    Mr. Weinstein. I would be happy to discuss it in a closed 
    Mr. Waxman. Has there been any discussion within the 
administration about declassifying this Memorandum of 
Understanding, if you know?
    Mr. Weinstein. That I know of? Yes, I would say there has 
    Mr. Waxman. And who wanted the MOU released and who didn't 
want it released?
    Mr. Weinstein. Let me say that if it was released, I would 
have no trouble in conveying it, and that is as far as I would 
go on that square.
    Mr. Waxman. Does the MOU include any mechanisms to check 
against officials making these absurd classification decisions?
    Mr. Weinstein. That is tough for me to answer, Congressman, 
as you might appreciate given what I said previously.
    Mr. Waxman. Mr. Chairman, given these responses and since 
so many of the details about this program remain classified, we 
are left with some significant questions. I would like to make 
two requests. First, Mr. Chairman, would the subcommittee send 
a request for the classified MOU that governs this program? And 
second, could the subcommittee also request a classified 
briefing on this program with all the relevant agencies to 
obtain answers to these pressing questions?
    Mr. Shays. That will happen. We will do that. It makes 
sense. I am almost tempted to just tell my counsel, respond in 
a way, as well, because I am finding this--I don't know, Mr. 
Weinstein, if part of your answers are almost the exact kind of 
problem that we are trying to make in this hearing. Is the 
reason why some information isn't being responded to Mr. Waxman 
because they would embarrass people or is there a legitimate 
reason to classify or to suggest that this can't be said 
    Mr. Waxman. He's caught in a catch-22 because----
    Mr. Shays. I know he is, but in a way, the bottom line is, 
there is almost an absurdity of going into having a classified 
hearing about something that is sensitive but unclassified.
    Mr. Waxman. But the MOU is presumably classified.
    Mr. Weinstein. Yes, sir.
    Mr. Waxman. So we want to get, one, a copy of the MOU----
    Mr. Shays. Right.
    Mr. Waxman [continuing]. And I hope you support that 
    Mr. Shays. Yes.
    Mr. Waxman [continuing]. And second, we ought to get a 
classified briefing on this program, this whole program, 
because it is not just based on the MOU, but it seems to be 
based on some Executive order and all other agencies are 
    Mr. Shays. Let me----
    Mr. Waxman [continuing]. And we ought to see what is so 
pressing that----
    Mr. Shays. I am going to start first to ask that it be 
declassified, that we can have it in a public setting. If it 
can't be declassified, then we will have a classified setting 
hearing. But you can be assured that there is going to have to 
be some real justification as to why it needs to be classified. 
Are you comfortable with that?
    Mr. Waxman. With your request that it be declassified and 
given to us, and if that is refused, you will request that it 
be given to us even though it is classified and hold a 
classified hearing on it.
    Mr. Shays. Right--no--yes--[laughter]--let me explain what 
I am asking. I am asking my staff to do this as counsel or 
someone with legal expertise because I find some of this almost 
silly and absurd. I find some of this destructive to our 
country, and I think what Mr. Waxman wants is very, very 
important, but I don't want to start doing the very thing that 
I am finding others doing. I don't want to start to suggest 
that some things need to be behind closed doors when, in fact, 
maybe they shouldn't be, and so that is what I am wrestling 
    Mr. Halloran. Thank you, Mr. Chairman. For the record, to 
the Archivist, will the Archives provide the subcommittee under 
classified cover a copy of the Memorandum of Understanding, of 
    Mr. Weinstein. It is my understanding that is entirely 
appropriate, but I would like to turn to my counsel, if I may, 
just to be sure that I am not misstating anything here.
    Mr. Weinstein. One of the things about not being a lawyer, 
counselor, is one has to consult. The classifying authority, I 
have been told, is with the classifying agency, which would 
have to authorize the--without further action by the 
subcommittee, the release of the classified Memorandum of 
    Mr. Halloran. But you can't tell us to whom such a request 
would be directed?
    Mr. Weinstein. I suppose what we would do would be to 
convey your request to the classifying agency and try to get an 
immediate response so that we can accommodate the subcommittee.
    Mr. Leonard. Again, it is a Department of Defense 
component, so it makes it very easy.
    Mr. Waxman. So the classified agency is a Department of 
Defense component, is that----
    Mr. Weinstein. That is what I said in my statement.
    Mr. Rogalski. Mr. Chairman, the MOU does belong to the 
Department of Defense in conjunction with NARA. We have 
received a FOIA request for that MOU. We are looking at that 
now to see if it can be sanitized. But let me assure you that 
the rationale for classifying that was done in accordance with 
what the Executive order determined by the original 
classification authority.
    So we certainly have no objection to providing you a 
classified briefing on that MOA. We do not have a problem and 
we are going through the process of seeing can it be sanitized 
now and being presented to you in an open forum. So that is 
happening as we speak. But again, I want to assure you that the 
basis for the classification, again, in my opinion, after 
reviewing that, was sound and between NARA and us. We can 
provide that to you.
    Mr. Shays. So the bottom line you are stating is that it 
was your recommendation that it be classified, or, excuse me, 
that you concurred with the recommendation of others that it be 
    Mr. Rogalski. My office concurred with the classification 
decision done by the original classification authority 
responsible for that document, that is correct.
    Mr. Shays. And you think it would be unlikely that if we 
asked that it be reviewed to be declassified, it would be 
unlikely it would be declassified?
    Mr. Rogalski. We can certainly review that and determine 
but I don't want to give you a document with all black lines on 
it, redacted.
    Mr. Shays. No----
    Mr. Rogalski. I want to give you something that is 
    Mr. Shays. And we don't want a sanitized version. We want 
the real thing and we will do it----
    Mr. Waxman. Mr. Chairman, let us get both, because it may 
take them too long to figure out how to----
    Mr. Shays. OK.
    Mr. Rogalski. And we have no problem briefing you on the 
rationale, the MOU and the rationale for the classification 
    Mr. Shays. I think Mr. Waxman's suggestion is important. 
Let us get the sanitized version that can be made public and 
then we would like to see the real McCoy. It will be a good 
opportunity for us to decide as a subcommittee whether we think 
there was justification for it being classified. I think that 
we will ask all the subcommittee members to see this document 
so that we--in the subcommittee to get their views, and we will 
issue a statement on what we think about that document and the 
justification we heard.
    Mr. Leonard. If I could just add, it will be withheld, I 
presume, Mr. Chairman----
    Mr. Shays. Well, it may be sensitive but unclassified.
    Mr. Leonard. And if I could just add something here to 
further shed some light on the issue, again, the audit that is 
currently underway, and I don't want to presuppose any final 
results, but I can tell you one of the things that we 
ascertained very early on, the exemplars that were provided to 
our office and were released to the media and whatever, those 
exemplars were not pulled pursuant to that MOA. They were 
done--action taken quite a few years ago.
    Mr. Shays. At this time, the chair would recognize----
    Mr. Waxman. Mr. Chairman, there is then the question of who 
did those and why----
    Mr. Leonard. They were pulled by the CIA and they were 
pulled in response to a serious breakdown in quality control 
back in about the year 2000, where information that clearly was 
inappropriate for release ended up being released, and in an 
attempt to clean that up, it went too far the other way.
    Mr. Shays. With all due respect, about the year 2000, there 
is a big difference between the year 2000 and the year 2001. 
Was it in 2000?
    Mr. Leonard. I believe it was the year 2000, yes, sir.
    Mr. Shays. So it was the previous administration in that 
    Mr. Leonard. Yes, sir.
    Mr. Waxman. The same CIA Director. [Laughter.]
    Mr. Weinstein. Mr. Chairman, if I could just add, what Bill 
Leonard has just mentioned gets to the heart of the complexity 
that I was discussing with Congressman Waxman of who did what, 
when, and related to your initial question. We hope to have as 
many answers to that question as we can put them into the audit 
and we will look forward to getting you a copy of that audit.
    Mr. Leonard. And actually, if I could just add, I mean, the 
whole confusion, the awkwardness and whatever cries out for 
transparency in this process. That is the one thing that we are 
committed to providing, not only transparency going back to 
1995 for all such activity but continuing transparency for a 
number of good reasons. No. 1, to ensure that any action taken 
along these lines is absolutely, positively necessary because 
people know that people will be watching, but even more so, to 
prevent perceptions being created that, quite frankly, harm the 
Nation, harm the process, and are understandable but yet are 
    Mr. Shays. Let me just say, I happen to have taken off my 
jacket. I was feeling a little warm. I would want any of our 
witnesses to feel that they could do the same thing. I don't 
want a double standard. I am being serious. If you would like 
to take off your jackets or coats, feel free.
    Mr. Van Hollen.
    Mr. Van Hollen. Thank you, Mr. Chairman. As you said, this 
whole process seems to have sort of an Alice in Wonderland 
quality to it.
    Let me just make sure I understand the memo. The memo is 
between the Archives and an agency of DOD, is that right?
    Mr. Leonard. Yes.
    Mr. Van Hollen. What was the classification level of that 
memo? Is it secret? Is it top secret?
    Mr. Leonard. I believe it is secret.
    Mr. Van Hollen. Secret, OK. Now, as I understand it, there 
were many documents that were reclassified outside of that 
particular agreement.
    Mr. Leonard. That is correct.
    Mr. Van Hollen. In other words, there were other government 
agencies that came in and reclassified documents, is that 
    Mr. Leonard. Yes, sir.
    Mr. Van Hollen. OK, and those include the CIA and DOE?
    Mr. Leonard. That is correct.
    Mr. Van Hollen. Were there any others?
    Mr. Leonard. Not that I have identified yet, but again, 
that is the whole purpose of the audit, is to fully flesh that 
    Mr. Van Hollen. All right. Now let me just focus on that 
category for a moment----
    Mr. Leonard. Sure.
    Mr. Van Hollen. I understand this memorandum apparently 
regulates how the Archives deals with an agency of DOD, but let 
us take DOE, for example, since we have a representative from 
DOE here at the table and we don't have a CIA representative.
    Mr. Leonard. Sure.
    Mr. Van Hollen. If DOE wants to go back, they can 
reclassify documents under the Executive order, as I understand 
it, which they were the original classifier of, is that right?
    Mr. Leonard. Actually, the situation with DOE is even more 
unique since, as Mr. Podonsky explained, their information 
which pertains to nuclear weapons is actually outside the scope 
of the Executive order and is classified pursuant to statute, 
the Atomic Energy Act.
    Mr. Van Hollen. OK, so let me just make sure I understand. 
So you are saying the Executive order doesn't apply to DOE at 
    Mr. Leonard. It doesn't apply to DOE, at least with respect 
to restricted data and formerly restricted data which deals 
primarily with nuclear weapons, yes, sir.
    Mr. Van Hollen. OK. So if DOE has documents that they 
originate at DOE, they are at the Archives now, right?
    Mr. Leonard. Yes, sir.
    Mr. Van Hollen. Now, they want to come in and reclassify 
documents. First of all, let me figure out how they got 
declassified to begin with. As I understand it, technically, 
DOE as the classifying agency, even under this other authority, 
are they still the ones that have the authority to declassify 
it and are they only ones that have the declassification 
    Mr. Leonard. They have the authority, and what happens in 
that case is what happens in other cases, as well, too, this 
kind of information will appear in another agency's record, for 
example, the Department of State, and when they go to 
declassify it, the person who does it does not necessarily 
recognize that, hey, wait a minute, there is information here 
that belongs to another agency. I can't take unilateral action 
on it.
    Mr. Van Hollen. I understand. I understand that. So when 
DOE is going in to reclassify, the first question I have is, 
are they going in to reclassify DOE information that has been 
declassified by the State Department or other agencies, or have 
they also gone in to reclassify DOE information that they 
originally declassified?
    Mr. Leonard. That is right on, because what has--again, our 
audit is in process, but one of the key issues that has come 
out very early on is that when agencies are re-reviewing for a 
specific purpose, if they come across additional information 
that they believe was inappropriately declassified, that 
likewise is being put aside.
    Mr. Weinstein. Let me add a little complexity even beyond 
that, Congressman Van Hollen, if I can. It is fair to say that 
we are learning more with each day of doing this audit, and it 
is fair to say that in my position as Archivist, I am learning 
even more because until the news media provided me with that 
information, that was my first knowledge of this program and 
all of its complexities and I am not sure I have the complete 
handle on the story now. As a result of this audit, I hope to 
have it, and when I have it, obviously, the subcommittee will 
have it, as well.
    Mr. Van Hollen. Thank you and I appreciate that. I 
understand. With the audit so far or with your research into 
this so far, you have discovered instances where the DOE has 
reclassified information that they themselves declassified? 
Just yes or no, if that is----
    Mr. Leonard. That they themselves have declassified?
    Mr. Van Hollen. That they had originally declassified, and 
they have gone back to reclassify that.
    Mr. Leonard. It is unclear. I am not too sure if I have 
that depth of understanding.
    Mr. Podonsky. Let me, since it is a hypothetical, let me 
just--I recognize it is a hypothetical, but again, as I said in 
my testimony, the Department of Energy has not gone back into 
the National Archives and reclassified anything that was 
declassified. However, what we were asked to do in 1996 by the 
Congress is to go back in and take a look at all the records 
from other agencies that may have had RD or FRD, and then the 
Kyl amendment went in and said also go in and train other 
agencies to know how to look for RD or FRD, and then the Lott 
amendment said go in and also take a look at all documents that 
were already previously taken off the shelf at NARA. So 
hypothetically, we could be the agency that was doing it, but 
we are not.
    Mr. Leonard. Congressman, let me answer the question, try 
to be as direct as I can to your question. The Executive order 
has a very high threshold that if an agency declassifies 
information and for whatever reason changes their mind, they 
have a very high threshold to meet. Agencies to date have 
represented to me that they have never done that. Based upon 
what I know to date, I don't think that is necessarily the 
case. I think they have, in fact, done that for a variety of 
reasons, may not have understood it to be that, but I do 
believe that there have been instances where agencies have gone 
back and reclassified information that they themselves have 
previously declassified without meeting the threshold that is 
spelled out in the Executive order.
    Mr. Van Hollen. OK. Let me just also briefly try and 
understand the process by which this happens. Let us say that 
the CIA or DOE, say they want to come back and take a look at 
whether other agencies have declassified information that they 
were the original classifiers of. What do they do, come over to 
the Archives, they knock on the door and say, where are our 
files, and they go in? Does the Archives have any ability to 
make an independent determination about whether what these 
agencies are doing is appropriate or not appropriate?
    Mr. Leonard. The delineation of responsibilities is when 
records enter to the National Archives and when they are 
accessioned into the Archives, they are under the control and 
the custody of the National Archives. They belong to the 
Archives. So no agency can just simply come in and rifle 
through records on their own.
    Mr. Van Hollen. That is why you can have a moratorium?
    Mr. Leonard. The information that is contained in those 
records, when it is classified information, the classification 
authority over that information remains with the agency, and so 
when agencies exercise declassification authority or 
reclassification authority or say that this was declassified 
improperly, that is an authority that they have that the 
Archives does not have. The Archives cannot classify 
information on their own, and so the Archives is hard pressed 
from that perspective to challenge an agency with respect to 
exercising their classification authority.
    Mr. Van Hollen. Thank you, Mr. Chairman. I have a lot more 
questions, but I don't want to take up any more time, but thank 
    Mr. Shays. Thank you for your questions.
    At this time, the chair would recognize Mrs. Maloney.
    Mrs. Maloney. I want to thank you, and I would like to ask 
the representative from the Department of Defense this 
question, Mr. Rogalski. I want to give an example of one audit 
and how there was no appeal process and then really ask all 
Members, where is the appeal process when there is a redaction.
    I cite the publicized case of the Iraqi oil money, the 
audit for the United Nations, where DOD had an audit through 
the DCAA, the contracting audit agency, about the overcharges, 
and in that audit they concluded that there was an overcharge 
to our government of over $200 million. During the audit and 
during the time that it was handed over to the United Nations 
and to the public, absolutely everything that mentioned the 
overcharge was redacted. It was reported in the paper that the 
audit was handed over to Halliburton and Halliburton made all 
the redactions, handed it back to DOD, and no one questioned 
this. It finally came out in the press. I would like to put 
this article into the record of this hearing.
    But my question is, I think that obviously this was an 
inappropriate redaction of information. Overcharging is 
illegal. It is wrong. It is our taxpayer money. In this case, 
it was the Iraqi oil money. It is a report to the United 
Nations. But when waste and abuse appears in our government, we 
don't want to have it redacted so that we can move forward 
watching taxpayers' money more appropriately.
    And my question really to the panel, and I will start with 
DOD, since that happened to have been a DOD contracting audit 
under DCAA, where is the appeal process? Where is the appeal 
process? Say I am a reporter, or even a staff member on this 
subcommittee, or a Member of Congress, and I see that 
everything in the report is redacted. Who do I appeal to that 
is an independent government professional who can decide 
whether it is in government's interest, the public interest, 
the taxpayer interest, the honesty interest to have that 
information revealed to government and to the appropriate 
overseers to correct it so that money is not wasted in the 
    Mr. Rogalski. I am not familiar with the cases you 
describe, ma'am, but I can certainly take the question for the 
record and get that back to you if you would like more 
information on it.
    Mrs. Maloney. I will send it to you in writing. It was 
reported in the press widely.
    Mr. Rogalski. OK. There is an appeal process. We have FOIA 
offices throughout the Department of Defense. People are 
trained. They are familiar with the exemptions and people are 
allowed to go and appeal that determination once that document 
is released and----
    Mrs. Maloney. And how do they appeal it? Do you need a 
lawyer to appeal?
    Mr. Rogalski. No, ma'am. They can come in as a citizen or 
    Mrs. Maloney. Take this example, that everything is 
redacted. I mean, to me, I think it is scandalous that it was 
given back to Halliburton and they are the ones who redacted it 
and that DOD then accepted it. But say I get a paper on a 
contract and everything is redacted. I mean, how do I appeal? I 
don't know what was in it. I can just say the entire page is 
redacted. The purpose of the audit was overcharges. Why in the 
world are you redacting overcharges, or what are the bases on 
which you can appeal? It has to have certain standards, right?
    Mr. Rogalski. Well, the standards are what is required 
under the FOIA, those exemption categories, and have we 
provided the rationale for that when you come in with that 
appeal. There are certain examples of where you see it, as you 
described earlier, blacked out, and I think those are wrong. 
Mistakes have been made. But I think part of us and what we are 
doing is having an education process, so before it is released 
for FOIA, people are doing the right thing. And we agree. We 
need more rigor in the process. I will not deny that. So----
    Mrs. Maloney. What I don't like about this, I just came 
from a meeting earlier this morning with whistleblowers and 
there is no protection for whistleblowers, particularly in 
defense and national security. They were saying that if they 
don't toe the party line, then they lose their job, they lose 
their clearance, and they are made the evil ones.
    So here you are appealing to another person within the same 
department that shows a mismanagement in that department. That 
employee may know that their higher-ups may strip them of their 
jobs, their standing, their clearance, which has happened to 75 
members of the government that are part of this organization 
that I met with earlier this morning. See, you are appealing to 
a group of people who are not covered under the Whistleblower 
Protection Act. In other words, if you don't toe the party 
line, you know, obviously someone wanted to cover up that these 
overcharges were there. Otherwise, they would have just put it 
out in the public to begin with. In other words, it is not 
working, and to say we should be more rigorous is not answering 
the problem. So I would like some comments from others.
    I think one of the biggest responsibilities all of us have 
is to maintain the faith and trust of the American people in 
our government, and when they read stories like this, it is 
upsetting to them. It sounds like their government wants to 
cover things up. And I would say that I think one of the 
strongest parts of our government is our ability to look at our 
problems, discuss them publicly, and make corrections. We 
certainly have made a lot of them in New York with the 
September 11th, with our security, to notice what we are doing 
wrong, to discuss it publicly, and then go forward.
    But things like this, these massive redactions for which no 
one really can appeal--people tell me when they appeal, they 
are appealing to the same agency. They just say, our redactions 
are appropriate. Get lost. There is really no independent place 
to go. I am not trying to point fingers at anybody, at any 
administration or any party or any department. I am just saying 
that I think this is a problem and if this continues, there is 
a lack of faith in the system. And when there is a lack of 
faith in the system, you have cynicism, you have people that 
don't support their government, and you have problems.
    You know, I am really seriously very disturbed about it and 
I would like to hear from anybody on the panel or any of my 
colleagues if they have an answer to this problem.
    Mr. Weinstein. Can I address that?
    Mrs. Maloney. Certainly.
    Mr. Weinstein. Congressman Maloney, what you are describing 
is obviously not a satisfactory situation, but let me give you 
a little personal response to what I take is a very personal 
reaction on your part. I am here today because I felt the head 
of the National Archives and Records Administration should be 
here, not simply the able, skilled professional, my colleague 
Bill Leonard, who is reflective of the other able, skilled 
professionals at this table.
    I am here because what the researchers and historians 
uncovered about a month ago is not a tolerable situation, not a 
situation that should be tolerated, and I have done what I can 
within the agency to bear witness to the need for change and 
the need for immediate change and the need for a genuine effort 
to persuade the public and to persuade our colleagues in this 
town of both parties, of both Houses of Congress, in the media, 
whomever, that we are on the case, that we are going to find 
out what happened and that information will become public, and 
that with the support, I am pleased to say, at the moment, of 
not just the researchers who brought forth this material, but 
with the support of the agencies that have been involved, as 
well, and I would like to keep that there because I think this 
is a moment when good changes can be made that please this 
    But what recourse can we have? Often we don't have legal 
recourse, but we have a bully pulpit. We have the ability to 
speak out within government and to use that ability, and that 
is what I am trying to do here and that is what I suspect that 
my colleagues elsewhere in the government are also trying to 
    So I respect your question. I don't have an answer to it 
because I don't have the technical answer to where----
    Mrs. Maloney. I appreciate all your work, and I have done a 
lot of work with Archives. You have done a great job and we 
appreciate it. But I would like to ask Ms. D'Agostino with the 
Government Accountability Office, a nonpartisan factual 
organization--you do a great job for the American people--I see 
this as a problem. Do you have any solution to it of how do you 
appeal in any case? You could put it in the EPA, where someone 
goes in and closes down a business and they say it is, ``an 
illegal business,'' and then they redact the entire report on 
how they came to that decision. How does that small business 
person appeal? Members of the press tell me that if they ever 
question a redacted report that they receive from anybody, that 
it is like you are talking to a blank wall.
    Then another thing that I see in government that I find 
extremely disturbing is when they say it is under 
investigation. Therefore, we can't give you any information. 
That happens all the time. Many investigations on contracts or 
abuses on whatever, they will say, oh, we have referred it to 
our IG. It is under investigation. And for the next 5 years, 
you can't get any information. That is absolutely wrong and it 
happens all the time.
    I had a case today, an EPA case where they are 
investigating something, so my constituent cannot get any 
information and they may not be able to get information for 10 
years because it is under investigation and the investigation 
may never end. May she answer?
    Mr. Shays. Yes, and then we need to move on.
    Mrs. Maloney. OK.
    Ms. D'Agostino. We actually run into ongoing investigation 
issues in our work for the Congress, as well, so there is not 
very much that we can do about it. We usually have to stand 
down and wait for an investigation to be completed before we 
can then do our work, so this happens to us, as well, even with 
our very broad authority.
    But basically, in terms of appeals, the first step would be 
to make a FOIA request and request that a document be reviewed 
    Mrs. Maloney. But I am talking about FOIA requests, when 
the FOIA requests come back completely redacted.
    Ms. D'Agostino. Right, and these appeals can be done 
through the judicial system. So you can take the issue to 
    Mrs. Maloney. To court?
    Ms. D'Agostino. That is an option.
    Mrs. Maloney. But most people can't afford to go to court.
    Mr. Podonsky. Mrs. Maloney.
    Mr. Shays. Why don't you respond and then I am going to ask 
my questions.
    Mr. Podonsky. In the Department of Energy, Mrs. Maloney, if 
something was requested under the FOIA and the recipient is not 
satisfied, we have a separate office called the Office of 
Hearings and Appeals that reports directly to the Secretary and 
that would give your constituents the opportunity to go 
separate from the office that was responsible for redacting the 
document to begin with.
    Mrs. Maloney. And do all agencies have it, or is this 
unique to the Department of Energy?
    Mr. Podonsky. I don't know what the other agencies have.
    Mrs. Maloney. Thank you.
    Mr. Shays. I am going to yield myself time now to say that 
my focus--I think the whole issue of reclassification is 
interesting, but not really the issue that concerns me. I tend 
to think some is understandable. In one sense, I can explain 
    I think there was a dispute between the President and 
Congress, I think in one or two instances, and the reason it 
was pretty focused on the Department of Energy was there was 
sensitive information given out that related to things that 
could be very destructive involving nuclear information. I 
understand that. But I think it is somewhat stupid, because I 
think once it is out, it is out. So that is not what really 
bothers me.
    What bothers me is what we had in previous hearings, where 
even from the Department of Defense, our witness there said up 
to 50 percent was over-classified and the outside organizations 
were in the 50 to 90 percent range. What that says to me is 
that people who need this information won't get it.
    What bothers me, though, is the whole concept of ``For 
Official Use Only,'' but really the more broad category of 
``Sensitive But Unclassified,'' SBUs. That is what I want to 
spend my time talking about.
    Ms. D'Agostino, even your agency is a major offender here. 
No, seriously. I mean, we are almost asking you to investigate 
yourself because almost everything you provide us is ``For 
Official Use Only.'' I am exaggerating slightly, but it is 
true. Tell me why.
    Ms. D'Agostino. Well, the GAO does not have classification 
authority, and as a result----
    Mr. Shays. So let me translate. You do not have the 
capability to classify anything.
    Ms. D'Agostino. Correct. We give the documentation that we 
receive from other agencies the same protection that they do. 
In other words, we can't question their classification, say, of 
an FOUO document. I mean, we can question it, but basically if 
they say, look, this is FOUO and we have done a security review 
on your draft report and it is FOUO, then GAO must stand by----
    Mr. Shays. Why is that? Maybe I need a little bit of an 
education on the whole concept of ``Sensitive But 
Unclassified.'' It is in the statute. There is a process. What 
is the process that justifies anyone talking about ``Sensitive 
But Unclassified?''
    Ms. D'Agostino. I mean, I am prepared to talk about the 
FOUO category, but basically, that is based in large part in 
statute in the FOIA, the Freedom of Information Act, and the 
folks who have the authority to designate information as FOUO 
are the folks in the executive branch who provide us the 
    Mr. Shays. Is it anybody? Could I write a document and say 
this is ``Sensitive But Unclassified?''
    Ms. D'Agostino. In the Department of Defense, what our 
understanding is is the personnel of the Department are 
empowered to designate information----
    Mr. Shays. Who empowers them?
    Ms. D'Agostino. They are empowered under the regulation 
that DOD follows for FOUO, the security regulation.
    Mr. Shays. I am sorry, I am not clear. Are you clear about 
this? You are looking at me like----
    Ms. D'Agostino. No, no, no, no, no. I am just saying that 
GAO doesn't classify information.
    Mr. Shays. Let's get you out of the picture. Tell me 
    Ms. D'Agostino. Well, you were concerned that we were a big 
    Mr. Shays. Well, I am concerned, but I don't want it to 
block you being comfortable telling me information. I am 
wrestling with the fact that it is almost like we have 
invented, like the executive branch has invented this process 
to which they then can run anywhere they want with it if they 
have it. Are you saying that when Congress passed the Freedom 
of Information law, we empowered this concept of ``Sensitive 
But Unclassified?''
    Ms. D'Agostino. I didn't do a review of all ``Sensitive But 
Unclassified.'' I mean, we focused our work on the OUO and----
    Mr. Shays. OK. Let us do OUO. Talk to me about them.
    Ms. D'Agostino. Again, DOE and DOD have their regulations 
and their programs that govern this, and information generated 
by personnel within those Departments that they believe fits 
    Mr. Shays. Mr. Rogalski, maybe you can walk me through it, 
and then Mr. Podonsky.
    Mr. Rogalski. They Department of Defense has a regulation 
called Information Security Regulation. We do not have, like we 
do original classification authorities, anyone in the 
Department of Defense is authorized to make that FOUO 
determination based on the guidance that is contained in the 
    Mr. Shays. Could you say that again? Everyone in the 
Department of Defense? How many employees do you have?
    Mr. Rogalski. Two-and-a-half million cleared people, 
something like that, but let me finish my sentence.
    Mr. Shays. Sure. I am sorry. I shouldn't interrupt you.
    Mr. Rogalski. Subject to a review by their supervisor. So 
there is an inherent responsibility for supervisors in the 
Department of Defense to ensure that their employees are 
following the guidance contained in any regulation, directive, 
instruction we have in the Department. So we have an 
Information Security Regulation that specifies what are the 
criteria for applying the FOUO marking. It talks about the 
FOIA, the nine exemption categories. The first one that 
automatically exempts is if it is classified. And one of the 
things the GAO report recommended and we strongly endorse is we 
need better training among our employees within the Department 
of Defense.
    So I think the way to achieve, I think, the balance you are 
looking for and the right thing to do is to put more rigor, 
have more standardized training, have uniformity across the 
Department, and so we recognize that and we have agreed to that 
in the GAO report and we are combining--we are including 
updated guidance in the rewrite of that 5201(R) regulation, the 
information for deregulation that is going to be published this 
    So to answer your question, employees have the authority, 
subject to, like anything in the Department, review by their 
    Mr. Shays. Bottom line, every employee can designate it, 
but a supervisor has to sign off?
    Mr. Rogalski. It is not a sign-off per se, but it is a 
review. If a member of my staff generates a document, whether 
it is FOUO or classified, it----
    Mr. Shays. There is a difference. There is a difference. 
The implication I had from listening to, and that is why I 
wanted to say it and I appreciate you clarifying it, was we may 
have 2 million-plus employees, but their supervisor has to, I 
thought, basically approve it. It is possible the supervisor 
never even sees it, correct?
    Mr. Rogalski. There is that possibility, but again, if that 
is an issue or problem, I believe that can be overcome through 
proper training, the supervisors understanding what their 
responsibilities are. But you are correct.
    Mr. Shays. OK. Mr. Podonsky.
    Mr. Podonsky. Relative to your question, Congressman Shays, 
prior to 2003, the Department had over 20 different markings 
for sensitive information. The Office of Classification went 
forward with, in implementing the recommendation of the Hamre 
Commission report that I mentioned in my testimony, to bring 
that down to one, OUO, and as the GAO report recognized and I 
also say it in my testimony, we fully agree with we need to do 
a much better job of defining who has the authority to do the 
OUO, the training to make sure that it is done properly, and 
most important of all, to have an independent oversight of what 
is being done with those documents. So every part of the 
recommendations in the GAO report hit the heart of the issues 
at the Department of Energy.
    I would say that we have a very able, professional, 
nonpolitical staff responsible for classification of documents, 
the OUO situation in the Department was not dissimilar to the 
Department of Defense other than the magnitude is much smaller 
because we only have 15,000 employees, of which 5,000 are 
classifiers, and our experience is mostly it is the 5,000 
classifiers that are doing the OUO markings.
    Mr. Shays. I have questions for each of you. Ms. 
D'Agostino, I would like to know what is your response to DOD's 
objections to a GAO recommendation that DOD mark FOUO documents 
with the appropriate Freedom of Information Act, FOIA, 
    Ms. D'Agostino. Well, I guess we separate the two processes 
    Mr. Shays. Put the mic a little closer to you.
    Ms. D'Agostino. I am sorry.
    Mr. Shays. No, I can hear you, but move it a little closer.
    Ms. D'Agostino. OK. If you think about a document as having 
a life cycle from the time it is created and marked by the 
person who created it, you have one separate process that deals 
with marking it to the time when, say, a FOIA request is made 
and this document comes through a totally separate process to 
be reviewed by a totally different group of people to determine 
whether or not it can be released to the public.
    So the marking is a handling advisory, cautionary, almost, 
mode for this document that tells people, you need to be 
careful with this information and handle it according to the 
rules. Then there is a completely separate process to decide, 
that is triggered by a FOIA request, whether or not this 
information, regardless of how it is marked, is releasable to 
the public, and the front-end process has no impact on the 
process to decide to release the information. So if there is a 
mistake made in the marking, or let us say it should have been 
marked and wasn't marked, it has no bearing on the 
decisionmaking that is done to release to the public under the 
FOIA request.
    This is why we do not believe that the Department of 
Defense argument that it provided in its comments on this 
particular recommendation is very strong.
    Mr. Shays. OK. Mr. Rogalski, maybe just a response.
    Mr. Rogalski. Sure. When we looked at the GAO 
recommendation, we looked at the investment that they were 
suggesting we do by having people make that FOIA exemption up 
front when that FOUO determination is made. Some considerations 
to that we looked at were, one, if that document was created in 
1998 and then someone comes in with a FOIA request in 2005, 
that FOIA exemption applied in 1998 may be different. 
Therefore, we question what is the utility of having a FOIA 
exemption placed on the document at the date of creation.
    Second, our Office of General Counsel and the FOIA Office 
felt that if there was some type of litigation, an improper 
FOIA exemption was made on that, that could jeopardize anything 
that came up in a litigation. So that was our rationale on why 
we believe that we did not see the investment worth the return 
for putting that FOIA exemption on at the date of creation of 
that document.
    Mr. Shays. Let me ask counsel to respond.
    Mr. Halloran. Thank you. So the two rationale you pointed 
out, if the document is not going to be given out, why mark it 
at all at that point? If you are not going to specify why it 
may be non-disclosable, don't you invite abuse?
    Mr. Rogalski. Obviously, there is information in the 
Department of Defense that does not meet any threshold for 
being classified, but there is information that, based on the 
Information Security Regulations deserves some type of 
protection less of classification. What that does, it provides 
a degree of protection for that information. It advises that 
DOD employee, I just can't take this document, if it is 
unclassified or not marked FOUO, now I can just put it on the 
street, give it to a reporter, or whatever. So that FOUO 
provides a gate, if you will, before that information can be 
released. If it were not marked, then it presupposes you can 
release it, even though in the Department we have a security 
review for documents before they are released.
    Mr. Halloran. It is a gate without any reference to why 
there might be a gate, and the Department of Energy apparently 
hasn't had the legal problems DOD fears, have you?
    Mr. Podonsky. No.
    Mr. Halloran. Because, as Ms. D'Agostino said, the FOI 
review process as to what exemption it might apply for is an 
absolutely separate and independent determination of what 
someone might estimate when the marking is made. I just don't 
see the legal peril it puts you in.
    Mr. Rogalski. Well, fortunately or unfortunately, I am not 
a lawyer, so I think I need to take that as a question for 
record, have our FOIA office and our Office of General Counsel 
take that question and get back to you with a response, if that 
is suitable for you.
    Mr. Shays. That would be fine. I would just like, before I 
go to Mr. Kucinich and then the next panel, I would like some 
observations from Mr. Weinstein and Mr. Leonard on what we have 
just been talking about.
    Mr. Weinstein. Which specific aspect, Mr. Chairman?
    Mr. Shays. Just the questions that I have been asking. If 
you have no reaction, then you don't have to respond.
    Mr. Weinstein. I will pass to Mr. Leonard on that.
    Mr. Leonard. The whole issue of ``Sensitive But 
Unclassified,'' basically, from our perspective, there are two 
broad categories. There are specific information that the 
Congress has told executive branch agencies they must protect. 
As a Federal employee, I am liable from sanctions or even 
criminally for disclosure of certain kinds of Privacy Act 
information, protected critical infrastructure information, 
things along those lines. The list goes on and on where there 
are statutorily based restrictions and a lot of that 
information ends up with an FOUO designation on it, and in a 
way, it is a notification to a Federal employee that, hey, this 
is the stuff that you can be held subject to sanctions for if 
you improperly disclose.
    On top of that, there is another broad category of purely 
discretionary information that agencies can withhold under the 
FOIA if they choose, but they could also disclose. You know, 
there is such a wide disparity of information covered under 
this broad umbrella. Quite frankly, from someone who has almost 
35 years' experience in the government, I have yet to be able 
to comprehend it to the point where I am comfortable and I 
think that is the biggest problem that the average Federal 
worker has in terms of there is just such a wide array of 
information that can be covered under this from different 
perspectives that the impulse is, well, what can I get into 
least trouble for?
    Mr. Shays. One of the things that I thought when I was 
elected to Congress when I had a briefing, that I would 
actually learn something I hadn't read in the New York Times, 
and I will never forget a Member of Congress, after being 
briefed and we were told solemnly that this was classified and 
so on, so the Member of Congress stood up and said, now this is 
classified, this is classified, this is classified, and he had 
about 10 items, and then he took a New York Times article and 
just read it point by point and each one of those articles was 
    I have read some things that are designated ``Sensitive But 
Unclassified'' that I think could be very awkward, not 
embarrassing but awkward and uncomfortable and not appropriate 
for someone to see, so I don't even want to imply that once in 
a while, I haven't read things that say ``Sensitive But 
Unclassified'' and think, gosh, this should be classified.
    My general view is that we have an absurd system and I 
think, Professor, you realize that we have some huge problems. 
What we would like to do is we would like to augment what 
others have done in terms of appraising this and come up with 
some very concrete suggestions on how to reform this system.
    Mr. Rogalski, I think to allow the employee to be able to 
say something is classified and then say a supervisor, I mean, 
the definition of a supervisor is kind of interesting and I 
want to just understand that process more because it doesn't 
seem logical to me that the system would be working this way. 
So I think there has to be more to the story.
    At any rate, Mr. Weinstein?
    Mr. Weinstein. Just a few final thoughts, Mr. Chairman. I 
am really looking forward to the completion of the audit and 
getting that audit to you because the beginnings of any, I 
think, serious assessment that the Congress can do might be--it 
might be useful for your and your colleagues----
    Mr. Shays. We will wait to do our report until after, but 
we are going to combine the whole issue of classification with 
civil liberties and a few other issues. The bottom line is, any 
administration that wants more authority has to have more 
oversight, and part of the oversight has to be that you have 
access to information and that everything isn't just hidden 
from the public and even Congress.
    At this time, the chair would recognize Mr. Kucinich.
    Mr. Kucinich. Thank you very much, Mr. Chairman I think the 
chair is well spoken when he points out the inevitable 
political character of the classification system, and his 
comments are well taken when you consider that you can be told 
in closed session certain things are classified and then read 
about them the next day.
    One of the reasons why I, as a Member of Congress, stopped 
taking the so-called Secrecy Oath right after you take your 
oath of office that enables you to go to the, ``classified'' 
briefings is that so many of the sessions I would go to, I 
would end up reading the next day. But as a Member of Congress, 
because I went to that session, I couldn't talk about it 
because of the oath that I took with respect to the secrecy.
    So there is an overtly political character to the control 
of information, and I mentioned several examples in my opening 
statement where both classification and declassification of 
documents were done in an overtly political manner and I think 
this was particularly evident with the memo written by former 
Counterterrorism Chief Richard Clarke to Condoleezza Rice 
warning about the al Qaeda threat that was made public right 
before she testified to Congress on the administration's pre-
September 11th intelligence knowledge.
    I would like to ask a few questions here. Mr. Podonsky, how 
long have you worked for the Department of Energy?
    Mr. Podonsky. Twenty-two years.
    Mr. Kucinich. You are aware that the Department of Energy 
was one of the first Federal agencies to re-review documents 
that had already been released, particularly over allegations 
of Chinese spying in the 1990's? Are you aware of that?
    Mr. Podonsky. No, I am not aware of that.
    Mr. Kucinich. OK. In your work at the Department of Energy, 
did you ever have anything to do with the Wen Ho Lee case?
    Mr. Podonsky. The answer is yes. We had an independent 
oversight group go out for former Secretary Richardson to take 
a look at what the circumstances were.
    Mr. Kucinich. Was there any time at which classified 
documents relating to that case were withheld from public 
disclosure, said documents which may have been exculpatory of 
Mr. Wen Ho Lee?
    Mr. Podonsky. I believe I have third-party information that 
says, yes, that is true, because there was an ongoing FBI 
    Mr. Kucinich. See, that is what I mean about the inherent 
political nature of classification. I would like to ask Mr. 
Leonard, I also mentioned the case of Luis Posada Carriles and 
the administration's justification of the NSA eavesdropping 
program and the Harmony Program. What other examples do you 
know of where the regular classification and declassification 
processes have been ignored or misused for political reasons? 
Any others you want to cite?
    Mr. Leonard. There is a basic premise in the Executive 
order that recognizes that information, even if it is 
disclosure, could reasonably be cause to, or expected to cause 
damage to national security, that information as a matter of 
discretion for an agency head can, in fact, be declassified if 
there is a compelling public interest to do so. The issue, 
then, I guess, obviously becomes who determines what is the 
public interest, and I think that is a responsibility that we 
all have as government officials, but ultimately, I tend to 
think that the public, then, will be the ultimate arbiter in 
terms of what is in their interest or not.
    Mr. Kucinich. There is another dimension there. It is not 
just classification or declassification, it is redaction, as 
well. You know, we haven't gotten into that too much, but with 
a pen, you can change the character of something that is 
released as being unclassified when actually the essential 
nature of the communication is kept from the public or remains 
classified. I mean, would you explain to me your concerns about 
the policies regarding redaction?
    Mr. Leonard. That is a very real concern. As a matter of 
fact, there are some people who use that as an excuse not to 
redact and instead withhold the document in its entirety for 
that very reason. Redactions, without a doubt, if not properly 
applied, can, in fact, change the gist of a document, can 
change the gist of the information as conveyed, and can leave 
the reader, at the very least, with an incomplete understanding 
of what is being discussed in the record, and quite possibly 
maybe even an incorrect understanding of what is in the record. 
So redaction is a very important tool. Again, the alternative 
is to withhold documents in their entirety, which I don't 
believe would likewise serve the public well, and so it is a 
tool that, when used properly, can be beneficial to all.
    Mr. Kucinich. Let me ask you something. What possible 
reason can you think of that documents from the 1940's and the 
1950's still remain classified?
    Mr. Leonard. Well, let me give you two examples. The 
exemplars that were provided to me several months ago by the 
group of historians, absolutely nothing was contained in those. 
On the other hand, there is information even decades old--for 
example, one of the things that is repeatedly recognized----
    Mr. Kucinich. Well, 40 or 50 years ago, or 60 years ago.
    Mr. Leonard [continuing]. Repeatedly recognized as a 
shortcoming in our intelligence capability is the ability to 
recruit human sources. To recruit human sources, we need to be 
able to, as a government, as a Nation, to be able to assure 
those individuals total and complete confidentiality, not just 
today, not just tomorrow, but quite possibly for decades, and 
    Mr. Kucinich. But forever kind of begins when you are dead, 
    Mr. Leonard. Well, when you are asking someone to betray 
their Nation, when you are asking someone to betray their 
loyalty, when you are asking someone to put themselves not only 
in physical jeopardy but quite possibly their family and maybe 
even in some parts of the world their descendants, it is asking 
a lot and the concern is, and I believe justifiable, is it 
makes it increasingly difficult to recruit the human sources of 
today that we so desperately need as a Nation unless we can, in 
fact, assure them total and complete confidentiality for a 
period that is reasonable.
    Mr. Kucinich. I just would like to make a comment on this. 
I know you have to get to the other panel. It seems to me what 
drives this overall debate about classification and 
declassification is not simply a question of where the pendulum 
is swinging with respect to democracy or something less than 
democracy. There is also a dimension of fear here.
    You know, when Francis Scott Key wrote the ``Star Spangled 
Banner,'' he drew an equation. He asked if the star spangled 
banner yet waves over the land of the free and the home of the 
brave. He drew a connection between freedom and bravery, 
between democracy and courage. We have to remember who we are 
as a Nation. We are forgetting the really fearless nature of 
the American character which enables us to go about our 
business without worrying about whether secrets are going to be 
unearthed. We are kind of forgetting who we are as a country.
    Mr. Weinstein. Could I make a comment? Thirty-one years 
ago, I won what was probably one of the earliest Freedom of 
Information Act lawsuits against the FBI for files of 
historical interest, and my record on access issues is fairly 
clear-cut all of my professional life as a historian. But I 
have come to believe very strongly, as I think you and the 
chairman and others do, that the real question is striking the 
appropriate balance, that there are such things as legitimate 
things that for periods of time should be kept secret, whether 
it is scientific inventions or whatever, the identify of 
American agents or whatever this would be, and that the real 
issue becomes one of striking the balance.
    One of your late colleagues who was a friend of mine and a 
friend of yours, I am sure, Senator Moynihan, did a little book 
on secrecy and pointed out some of the complexities of that 
issue, and it is to this subcommittee's enormous credit that it 
is trying to wrestle with these very complex issues and come up 
with some good solutions.
    But I think we would all agree, would we not, that there is 
a balance that has to be drawn, that there are some things that 
are not political, but that perhaps deserve for a period of 
time the protection of legitimate national security 
constraints. I say that with all respect. It is what we are 
trying to do at the Archives, first of all, by getting the 
facts out, and I can assure this subcommittee that it will have 
every fact that we have at our command as soon as this report 
is available.
    Mr. Kucinich. I thank the gentleman. I would just like to 
respond by thanking him for his service, but also pointing out 
that it is becoming increasingly aware that secrecy is the 
enemy of democracy.
    Mr. Shays. Let me thank each of the witnesses and ask, is 
there anything that you want to put on the record before we go, 
a question that we should have gotten into that you wanted to 
put on the record?
    Mr. Leonard. The only thing I would like to add, Mr. 
Chairman, is you mentioned oversight and the need for effective 
oversight, and I couldn't agree with you more, especially from 
an organization with the word in my name, title. But in any 
event, I am pleased to remind folks that we now have a Public 
Interest Declassification Board. It is up and running. It is 
operational. It has five members appointed by the President. It 
has four members appointed by the Hill leadership. The Board 
had its first meeting several weeks ago. They are going to meet 
again the first of April. From all indications, this is a group 
that is intending to be very aggressive in all regards in terms 
of exercising oversight.
    One of the things that I would be remiss in not mentioning 
is we are still two short of a full complement of membership. 
Specifically, we have the five appointees from the President 
and two out of the four from the Hill leadership. To the extent 
we could get a full complement----
    Mr. Shays. What are the two leaders that----
    Mr. Leonard. One is from the Speaker and the other is from 
the Senate Minority Leader.
    Mr. Shays. We will contact both offices.
    Mr. Leonard. I appreciate that very much, sir.
    Mr. Shays. By tomorrow, we will contact both offices and 
let them know we think that we need to move along.
    I know each of you in your own ways are concerned about 
this issue. First, to have the Archivist be willing to appear 
not as a separate panel, to me demonstrates a very fine quality 
which I want to thank you for being willing to participate. To 
the others, given that you are in that capacity, I want to 
thank our two government agencies because I know that both you 
know we have problems and want this system to work well and 
ultimately have the best interests of our country at heart. I 
appreciate that, and obviously, I always appreciate the good 
work of the Government Accountability Office, and Mr. Leonard, 
thank you so much for your contribution.
    The bottom line is, if you could help us make some 
constructive suggestions, it would be to your best interest 
because our suggestions might be followed and therefore it 
would be nice that they be things that would make sense.
    But the bottom line for me is we have to have more 
openness. The majority of the American people are truthful. 
They will have you do the right thing. When we hide so much 
from the American people, we hurt them and I get mixed signals 
from my own constituents because they don't have the facts that 
they need to have. I think that is true for other Members, as 
    So thank you all very much. I appreciate your participation 
today. Thank you.
    We are going to close with our second panel. It is Mr. 
Thomas Blanton, executive director, National Security Archive, 
George Washington University; Dr. Anna Nelson, distinguished 
historian in residence, American University; and Mr. Matthew 
    Mr. Rogalski, I just need to put on the record, you had 
mentioned something about 30 percent reduction. You are going 
to get the answer to that?
    Why don't you stay standing so I can swear you in. Thank 
you. Raise your right hands.
    [Witnesses sworn.]
    Mr. Shays. I would note for the record all three of our 
witnesses responded in the affirmative.
    We will start with you, Mr. Blanton. Obviously, your full 
statement is in the record. My general practice is, if you are 
the second panel, you get to have longer opening statements if 
you choose. You had the length of the others. But if you also 
deal with what you maybe heard in the first panel, that would 
be helpful. Mr. Blanton.



    Mr. Blanton. Mr. Chairman, thank you very much for having 
us here. We are dealing with two of those ``Houston, we have a 
problem'' problems, and there is a very interesting connection 
between the two and my organization, the National Security 
Archives, is right in the middle of it. We are the people who 
filed that Freedom of Information request for that classified 
memorandum that you just asked for and we hope to have a 
sanitized version, the law said 20 working days, but we have 
learned our lessons on waiting for that. But when we get one, 
we will be glad to give one to you and see if the Freedom of 
Information Act works faster than congressional agency 
relations. Sometimes, it does.
    But I wanted to point out one key point that no doubt you 
saw when Congressman Waxman was asking questions of the 
Archivist of the United States, that the Archivist of the 
United States wasn't in charge of the reclassification process, 
hadn't even known about it. That is an interesting signal 
because it bears precisely on the problem that you focused on 
on sensitive unclassified information. The agencies are in 
    The agencies rolled the National Archives at least four 
times that I am aware of since 1996. The Department of Energy 
went first, when they found some mistakes in the release of 
information. According to Steve Garfinckel, Bill Leonard's 
predecessor, most of those mistakes related not to nuclear 
weapon design information, but rather to the obsolete cold war 
locations of nuclear weapons overseas. But we as taxpayers have 
spent tens of millions of dollars reviewing tens of millions of 
pages--kind of a full-employment program for reviewers, to pull 
out a few handfuls of items that might be useful to a Khadafi, 
and that program, I think, needs more oversight, but it is a 
paradigm of transparency compared to what the intelligence 
agencies have pulled off at the National Archives.
    They watched, I think, the Department of Energy do this 
with the help of some amendments from Members of Congress and 
decided, oh, we would like that prerogative, too. We would like 
to go back and look at our own intelligence files, because 
mistakes were made. You heard that immortal Washington phrase, 
I think, earlier in the hearing today. ``Mistakes were made.'' 
Well, those mistakes, we now know because of what Matthew Aid 
did in his research, those mistakes were of the variety, gosh, 
we didn't get to look at that before it came out. That is our 
document. We have an equity in that document, and that is a 
huge problem, the same problem that we found on the ``Sensitive 
But Unclassified.''
    I just want to say here that our modus operandi is to file 
Freedom of Information Act requests and try to hold the 
government accountable, and so in answer to the questions that 
you posed over a year ago at your first hearing entitled, 
``Pseudo-Classifications,'' and we actually as a kind of 
``imitation, the sincerest form of flattery,'' named our report 
on the ``Sensitive But Unclassified'' program ``Pseudo-
Secrets.'' That is a tribute to you and this subcommittee. We 
filed Freedom of Information requests over the last year with 
40-some-odd different major Federal agencies that together 
include more than 90 percent of the--95, 97 percent of the 
Freedom of Information Act requests that get processed and we 
got responses from most of them, but not all, and then we went 
and supplemented that with a lot of Web research.
    We now have data on 37 agencies and what their policies 
actually are. You said earlier today that you had real trouble 
getting numbers. In fact, we have some numbers on this 
reclassification program. Fifty-five-thousand pages have been 
pulled out. That is the good news. We at least know the 
dimension of the problem. Nobody knows on ``Sensitive But 
Unclassified.'' When you asked the agencies to tell you, they 
said, oh, we can never figure that out. That would cost too 
much, take too long. Nobody knows.
    We thought at least through Freedom of Information requests 
we could at least find out how many separate policies were 
there and what was in those policies and how were employees 
being trained and guided and instructed on labeling records, 
and our conclusions are on page 6 of my prepared testimony and 
I think they are a little dismaying and should be dismaying to 
this subcommittee, and they are right on point to your 
questions, Mr. Chairman.
    In 37 Federal agencies, we found 28 different, distinct 
policies governing ``Sensitive But Unclassified'' information 
with little, if any, coordination between agencies. Even though 
a lot of agencies shared the same words on their markings, like 
``Official Use Only'' shows up a lot, ``For Official Use 
Only,'' ``Official Use Only,'' whatever, but not the 
guidelines, not the substance, not the internals of the 
procedures. None of the agency policies showed any monitoring, 
any oversight on the use or the impact of these policies. Only 
eight of the agencies actually had authorization from statute 
for their policy on ``Sensitive But Unclassified,'' sensitive 
unclassified information.
    Mr. Shays. And DOD would be one of them?
    Mr. Blanton. That is correct. DOE, as well, actually, which 
I think the GAO report very usefully points out. But, in fact, 
if you look back in the appendix of our report, you will see 
that DOD actually has three markings for sensitive unclassified 
information. Two of them are authorized by statute, but the 
other one is purely internal and that is the one that any 
employee can use. DOE has two markings for sensitive 
unclassified information. One of them is statutory. The other 
one is purely internal and any employee can use it. You get 
some really staggering notion of the dimension of the problem 
if you have 2.5 million employees in the Department of Defense, 
180,000 in the Department of Homeland Security.
    None of the policies featured a challenge or appeal 
mechanism for dealing with the markings, challenging the 
markings on any of these documents. Only one of the policies 
even contained a sunset, that a marking could only last for a 
maximum of 10 years. It was really striking to me, because you 
asked Mr. Leonard, what is the maximum sunset in the 
Presidential Executive order on classification, ``Top Secret'' 
is for 10 years or a date certain. This is fascinating. You are 
raising any employee can stamp document marking restriction to 
the level of ``Top Secret'' in terms of its duration. It is 
    Eight agencies effectively allow any employee to do this. 
DOD and DHS are the two biggest.
    Only 7 of these policies, 7 out of 28 policies, have the 
kind of qualifier that is written into the Executive order that 
says, you can't mark documents this way, you can't hide them in 
this way if you are covering up embarrassment, malfeasance, 
mismanagement, illegality, etc., only 7 out of 28.
    Finally, 11 agencies report no policy at all on their 
internal--we believe some of those agencies have such markings, 
use such markings, but they have no policy at all.
    The bottom line is of all this, I think you can conclude by 
the diversity of policies and the lack of coordination and the 
lack of any kind of commonality, the decentralized nature of 
the administration, I think neither Congress nor the public can 
tell for sure whether these kind of markings and safeguards are 
actually protecting our security or being abused for 
administrative convenience or cover-up. That is the bottom 
    How would you fix it? You started last year. You started 
asking agencies, how many are there? I mean, even to just get a 
handle around the problem, poor GAO couldn't take on the whole 
government. They had to just take on two departments and they 
still don't know how many ``Official Use Only'' and ``For 
Official Use Only'' documents there are. There could be 
millions. There could be billions. We don't know.
    Congress is going to have to order the agencies to report 
it. That is the only way you get this data. We didn't get cost 
data on classification until an amendment from the House of 
Representatives went into the appropriations bills in 1994 and 
1995 and said, agencies, report how much you are spending to 
keep your documents classified, on safes, on clearances, 
physical security, computer security, everything. That is how 
we know today we are spending $7 billion on classification. 
That is the kind of question that has to be asked. I think you 
are going to have to legislate it. I think that is what you 
have already found over the last year.
    Second, you are going to have to set some limits. Good 
parents set limits. Good congressional subcommittees set 
limits. You are going to have to set some limits, and that 
includes on the number of people who can put these kind of 
markings on documents, and you have to set some limits like 
sunsets, duration limits, and you are going to have to have 
some kind of appeal mechanism, challenge mechanism for insiders 
and outsiders for these kinds of markings. Otherwise, it is 
totally out of control.
    I think, third, you are going to have to move to rules 
across agencies, common rules, common standards, common 
criteria. You have to have that prohibition on using these 
markings to cover up embarrassment, malfeasance, criminality, 
because without that, even the internal reformers, and I count 
a number of the people on that previous panel as internal 
reformers, just don't have a lever against the overuse, against 
the abuse, as your counsel asked.
    I think those are the bottom lines on the ``Sensitive But 
Unclassified'' information. I just want to finish with a 
comment about the reclassification program, because I think the 
commonalities here are pretty interesting.
    Congressman Waxman mentioned a document on balloon drops 
this morning from 1948, widely published. In my prepared 
testimony, I had planned to just read out a sentence from that 
document about how, don't do them in winter, you know, 
unfavorable launch conditions, landing conditions, off-target 
and people can't find the leaflets on the ground when there is 
snow. But if I read that out, it would put everybody in the 
room at legal jeopardy according to the No. 2 person in the 
Department of Justice, Paul McNulty, who is bringing a 
prosecution over in Virginia right now for unauthorized 
possession of classified information.
    This is the danger when the agencies get a hold of the 
process and drive it. I think the same impetus that led to this 
reclassification program is leading to that kind of 
prosecution, that kind of vast overreach, invitation for 
selective prosecution, invitation for abuse. It is just wrong 
in a system that you have established minimum 50 percent is 
    So how do you stop a bureaucratic takeover? Well, the good 
news is, out at the National Archives, we have a couple of good 
examples of things that worked, things that changed the rules, 
things that moved stuff out in the public record. Congresswoman 
Maloney sponsored one of them on the Nazi War Crimes Act. Dr. 
Nelson, to my left, was on the Kennedy Assassination Records 
Review Board. Those processes worked to force documents out of 
the government because, A, they had a law behind them; B, they 
had an independent audit board to hold the agencies' feet to 
the fire; and C, they set a different standard of review, 
particularly for intelligence information, like those Nazi war 
criminals who were hired.
    Mr. Shays. Thank you----
    Mr. Blanton. My last point is just simply if we don't 
establish those mechanisms, then I will see you next year with 
some new embarrassments from the front page.
    Mr. Shays. Thank you very, very much.
    [The prepared statement of Mr. Blanton follows:]
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    Mr. Shays. Dr. Nelson.

                  STATEMENT OF ANNA K. NELSON

    Dr. Nelson. I think I represent those kind of independent 
historians, academic historians who don't have the resources of 
the National Security Archives and rather depend upon them to 
come up, because all we have is what we can find and what we do 
research about and we do not ever go to court because we don't 
have those funds. We really are very dependent upon the system.
    I was very interested in reading the conclusion of the GAO 
report, the first sentence. It begins with a statement that the 
lack of clear policies, effective training and oversight can 
lead to either over- or under-protection of sensitive but not 
classified information. As I read it, I thought, this is a 
statement that could apply to problems associated with 
classified information. Certainly, the recent removal, this 
reclassification that we have been talking about, is 
illustrative of this point.
    Because of these questions, I am afraid I have to return 
you, Mr. Chairman, to the issue of reclassification because I 
am a historian, a historian of American foreign relations. I 
would like to bring up just two or three, maybe four, points.
    The first point I would like to make is that those people 
who protect national security documents invariably overreact to 
current events, even though the records they protect are 25, 
30, maybe 50 years old. That is the case of Wen Ho Lee, whom 
Mr. Kucinich mentioned and others have mentioned. When he was 
accused of passing information in 1998 and 1999, did an 
extensive investigation that Mr. Blanton just mentioned 
occurred under the Lott Act. It took an enormous amount of 
time. It meant no other documents were being released. And you 
have to bear in mind that these documents were once carefully 
examined by Energy officials before being sent to open shelves 
in the National Archives.
    I know that the impression was left that other agencies let 
these documents go, but for those of us who wait for 
information with equities while they go to three or four 
different agencies, including the CIA and the Department of 
Energy, I am rather suspicious of that. I think that in every 
instance, Energy people did see these documents, but to them 
before the Wen Ho Lee case, they did not present a security 
    The same thing happened after the September 11th events. We 
started this reexamination that has been the topic here of all 
those thousands of pages of cold war era documents. They hold 
information about a Soviet Union no longer in existence, 
countries in the Soviet orbit that are now in NATO, policies 
long abandoned. But the media began to talk about a great many 
issues and the reexamination was, in fact, a result of current 
concerns. What this is doing, of course, is reading history 
    There is a vast difference between leaks, between the 
release of yesterday's confidential discussions, and 25 or 30-
year-old memorandums, and this kind of confusion that persists 
persists to the detriment of the public and the Nation's 
    Second, I would like to point out that there is a lack of 
consistency. This goes with the fact that there aren't clear 
policies. This lack of consistency comes because every single 
President can amend the Executive order on security 
classification, and for the most part, they do. In this 
instance, President Bush only put in amendments to the Clinton 
administration, but several of those amendments did change the 
thrust of the Executive order.
    The agency guidelines also vary, and again, sometimes 
because current events intercede. One of the examples that has 
been pointed out, I think by you, Mr. Chairman, was the issue 
of that famous document where the Chinese came into the Korean 
War but the President was told, indeed, the Chinese were not 
out there. Of course, General MacArthur told him that. But the 
CIA had published two documents in a volume in 1994, a volume 
called ``The CIA Under Harry Truman,'' which contains that very 
information, and many of us have been using it in the classroom 
ever since.
    Sometime between 1999 and 2006, the agency reclassified 
these documents and the reason for this, of course, is a 
mystery. Why? Is it necessary for purposes of national security 
to close a 1951 document because of current policy issues with 
North Korea? Is it necessary to close it because the CIA 
doesn't want to admit old intelligence failures given the new 
ones that have cropped up? In fact, the document may have been 
reclassified simply because those examining the documents did 
not know of the previous release, which is even worse.
    But the questions I have asked, those questions I have 
asked above, indicate a third problem with seemingly irrational 
declassification. They breed notions of cover-up and 
conspiracy. They further erode confidence in government 
    Fourth, those of us who use national security records at 
the National Archives know that whereas the government 
distinguishes between confidential, ``Secret,'' and ``Top 
Secret,'' the declassifiers generally do not. They certainly 
treat all records that were originally classified secret and 
top secret the same, and they often include those marked 
``Confidential'' among those withdrawn with ``Secret'' and 
``Top Secret.'' We have all seen that. An unanswered question 
in the GAO report relates to this problem. Tom mentioned it. 
How long will the ``Sensitive But Unclassified'' records be 
sensitive and unclassified? The ``Official Use Only'' records, 
are they ultimately going to be placed on the same footing as 
classified records?
    Without a clear answer, the Federal Government will be 
establishing a new category of records headed for 20 or 30 
years' stay in the security vaults at a great cost to the 
American taxpayer. The records under these categories should be 
clearly marked for opening within a short period of time. They 
should be given a very short residence within the security 
    As Tom mentioned, from 1994 to 1998, I was one of five 
members of the Kennedy Assassination Records Review Board. We 
all had ``Top Secret'' clearances and examined classified 
records in their original form. Records we reviewed were over 
30 years old. In the course of these 4 years, we released 
countless documents that had been closed by the CIA, much to 
their concern, including documents that discussed intelligence 
methods. We protected some names, if people were dead, and we 
agreed to protect certain symbols and technical information. 
However, we sent thousands of pages of CIA, FBI, and even NSA 
records to the open shelves of the National Archives. To my 
knowledge, no foreign government protested, no one was killed, 
and the intelligence agencies are still intact. Old records, 
with few clear exceptions, do not threaten our national 
    Thank you, Mr. Chairman.
    Mr. Shays. Thank you very much, Dr. Nelson.
    [The prepared statement of Dr. Nelson follows:]
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    Mr. Shays. Mr. Aid.

                  STATEMENT OF MATTHEW M. AID

    Mr. Aid. Thank you, Mr. Chairman. I will be brief. I 
realize we are getting on in the day----
    Mr. Shays. Don't say you will be brief. No one who has ever 
said they will be brief has done so. [Laughter.]
    When people say they will be brief, it is that they want to 
be brief, but they won't be. I attended Rosa Parks' funeral, 
and I am sorry, I am very sensitive about this, it lasted 7 
hours. There were 50 speakers and every one of them said they 
would be brief. [Laughter.]
    So do you want to amend your comments?
    Mr. Aid. Strike it from the record, please. [Laughter.]
    Mr. Shays. OK. It is not in the record. Welcome, and it is 
nice to have your testimony. You have the floor.
    Mr. Aid. Thank you, Mr. Chairman. We Americans are willing 
to make sacrifices, sometimes at the cost of our civil 
liberties, to help ensure that nothing like the tragic events 
of September 11th ever happens again. Even this middle-aged 
intelligence historian of dubious repute was willing to make 
some sacrifices because that is what I have sometimes preached 
in my writings on intelligence issues.
    But then a few months ago, as you are now aware, I 
discovered that elements of the Department of Defense and the 
U.S. intelligence community were engaged in a secret historical 
document reclassification program at the National Archives that 
had its origins back in 1999, and now I find myself in the 
position where I can't help but wonder what the U.S. Government 
officials designated to protect us have been doing since 
September 11th with the American taxpayers' money.
    The question foremost in my mind is, has the 
reclassification by the Pentagon and the CIA of these 55,000 
pages of historical documents, all of which are 25 years old or 
older, made America any safer in the post-September 11th era, 
and my answer is I tend to doubt it. Could the millions of 
dollars and tens of thousands of man hours expended to date on 
this classified program have been better spent elsewhere, 
especially at a time when many deserving programs in the United 
States are being cut in order to fund the ongoing conflicts in 
Iraq and Afghanistan? Again, I firmly believe that the answer 
is yes.
    Were the fiscal and manpower resources that should have 
been dedicated to declassification, as mandated by Executive 
Order 12958, hijacked and used instead to reclassify 50-year-
old documents that a small minority of U.S. Government security 
officials didn't want in the public realm, or is this document 
reclassification program nothing more than a gravy train for 
out-of-work security personnel, as one Pentagon official has 
described it to me?
    Finally, if we agree that this document reclassification 
program was a waste of time and taxpayers' money, how do we 
ensure that it never happens again? I fear that if this program 
and others like it are allowed to continue unchecked, we will 
end up revisiting this issue over and over again for the 
foreseeable future, for who is to say next month or next year 
which document some agency of the U.S. Government may choose to 
take exception to and demand its withdrawal from the public 
    I found that the wolves have even started feeding on 
themselves. I discovered this Friday afternoon that in 2004, 
the CIA security screeners began withdrawing a significant 
number of historical documents from their agency's own paper 
records that were originally declassified by the CIA in 1997 
and deposited at the National Archives, and it again appears 
that they were withdrawn because they contain criticism of how 
the agency was being run, written by senior CIA officials. 
Apparently, the CIA security officials who withdrew the 
documents in 2004 took grave exception to what their colleagues 
in 1997 had chosen to release to the public.
    If this is all true, my question is, where will it all end? 
Thank you, Mr. Chairman.
    Mr. Shays. I thank all three of you.
    [The prepared statement of Mr. Aid follows:]
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    Mr. Shays. You were actually very brief.
    Mr. Aid. Thank you.
    Mr. Shays. I won't be able to say that no one who says that 
is ever brief, so I resent that deeply. [Laughter.]
    I am going to have counsel start off.
    Mr. Halloran. Thank you, Mr. Chairman.
    Mr. Aid, what made you go back and look? I mean, my 
understanding was you were looking for documents, looking in 
places where documents you had previously accessed and found 
them not there. What made you go back for a second peek?
    Mr. Aid. You should understand, sir, that I am not a 
professional historian in the sense that, unlike Dr. Nelson and 
Mr. Blanton, I am a 20-year businessman who dabbles in history 
as a passion. I find that as I get older, I make more mistakes 
which requires that I go back and back and back to the same 
records to see things which, if I was 20 years younger, I would 
have spotted the first time around.
    One of the problems with being an intelligence historian is 
that there is no basis, there is no foundation upon which I, as 
a historian, can revert back to, because I write about the 
National Security Agency. Outside of one or two books and a 
smattering of articles, there is nothing for me to refer back 
to. So I find that what I am writing is a jigsaw puzzle. I have 
to go back to the records constantly, because the first time I 
went through them 10 years ago or 20 years ago, I guarantee you 
I didn't understand the import of what I was looking at at the 
time. That is why I went back in the fall of this year to 
reexamine some of those same State Department records which I 
looked at back in 1996.
    Mr. Halloran. In the course of your research, and this goes 
for all of you, in the course of your research in the Archives, 
had you run across withdrawn items before, a reference to 
somebody had pulled this for some classification reason?
    Mr. Aid. If you live and work at the National Archives, you 
live with withdrawal slips, many of which date back to when the 
documents were first released to the public. The first instance 
I ran into suggesting that something untoward was taking place 
in the post-September 11th era, meaning recent withdrawals, 
came in 2004, I believe it is, when I noticed that a number of 
records that I had already printed out from the CIA's data base 
of declassified documents had disappeared from the computer 
data base.
    Now, the problem with digital records is there is no place 
where you can put a withdrawal slip and say, oh, sorry, the CIA 
has decided that these records were inadvertently released and 
deserved to be classified. Being a native New Yorker, I went 
and complained loudly and longly and here I am 3 years later 
and I still haven't gotten the records, much less the CIA 
willing to admit that the records once existed.
    Dr. Nelson. We all have run into withdrawal slips. We run 
into them all the time. The most records that have been 
reviewed have been the Nixon papers, Kissinger and Nixon, and I 
had one occasion when I had at least six or eight boxes on a 
cart from the National Archives and not a single document, 
nothing but withdrawal sheets.
    There is also a change in the character of those sheets. 
They used to be much more explicit. ``So-and-so'' sent a memo 
on a certain date. No. Now they don't say that, for the most 
part. I understand the Archives is going to try to go back to 
that, because the view was we wouldn't ask for FOIA if we 
didn't know. But, in fact, we ask for more FOIA because we 
don't know. I mean, it may be a date we don't want, but we will 
ask for it because we don't know.
    Mr. Halloran. While I have you, I can't resist the 
opportunity to ask if you would help inform our consensus on 
the extent of over-classification. Having reviewed the Kennedy 
assassination documents, how much never should have been 
classified at all of what you saw?
    Dr. Nelson. Well, we had a board of five people and I was 
the only one who had ever used FOIA. They were eminent 
historians and an archivist and a very good lawyer, who is now 
a Federal judge. But here you had five civilians in a very 
unusual situation of being able to declassify and we all agreed 
each time. We never disagreed over what should be hidden 
because most of it did not make sense at all. It was just 
absurd. Occasionally, we would black out three little letters 
at the top of a piece of paper----
    Mr. Halloran. But as to the initial decision to classify, 
initially, back when----
    Dr. Nelson. They should never have been classified.
    Mr. Halloran. At all?
    Dr. Nelson. But----
    Mr. Halloran. Eighty percent of what you saw? Fifty 
percent? I mean----
    Dr. Nelson. Oh, I would say 80 percent of what we saw, and 
I think the important thing is that they are now open. I might 
add that I understand that the reclassifiers did go to that 
collection and ask to look at it and they were told that 
collection was there under congressional statute, which is what 
created the board, and they would not let them in.
    Mr. Halloran. Mr. Blanton, are you familiar with the 
argument that was made with regard to this reclassification 
operation that there were certain notifications or processes 
not followed because this wasn't a reclassification, this was, 
in effect, an un-declassification? We have to follow that. Is 
that your understanding of what was happening there?
    Mr. Blanton. That, frankly, and I guess we should abolish 
the use of the word ``frankly'' in congressional hearings as 
well as the ``I will be brief,'' right? [Laughter.]
    Isn't that the most overused single word probably in all 
    Mr. Shays. But at least it is more accurate.
    Mr. Blanton. It is an excuse the agencies are giving to get 
around a requirement that is somewhat onerous, and deliberately 
so, in the Executive order, because to reclassify something, 
you actually have to go get Bill Leonard's and the Information 
Security Oversight Office's approval. It gets checked out. 
There are big countervailing forces, checks and balances. There 
is none if what you can say, oh, this was an inadvertent 
release and so it is not really declassified, even if, as in 
the case of the balloon document, it is published in a book in 
1,000 libraries and on the World Wide Web and you can search 
for it and find it and read it to your kids so they will be in 
unauthorized possession of classified information.
    It is an excuse. It is a semantic game. Unfortunately, they 
have some good lawyers and they like to play those semantic 
games and they are trying to get around ISOO's oversight. I 
think that is really the bottom line.
    Mr. Halloran. On the SBU side, Mr. Leonard in his testimony 
made an argument, as did some others, as did you, on the need 
to try to standardize these SBU formats and regulations. Give 
us a sense from your studies today how difficult that would be. 
How wide a range is there? I mean, some have no regulations. 
Some have very detailed ones. How difficult in terms of 
individual agency equities and even statutory lanes they travel 
in would it be to craft--or are there enough common elements 
that it would not be overwhelmingly difficult to standardize 
SBU processes and rules?
    Mr. Blanton. I suspect that there are some common elements 
that are just plain common sense. Why can't the sensitive 
unclassified area have the same prohibitions that the 
classified area has on covering up criminality, malfeasance, 
embarrassment? That is just common sense. I would bet that a 
statute that the Congress came up with would be hard to argue 
against that, although people would drag their feet.
    There are some common elements like that. The ideas of 
duration--that was one of the big reforms in the 1990's in the 
classification system, the idea that at the point of 
classification, you have to put a sunset on the thing or it is 
going to live forever. There will be new mountains of FOUO and 
OUO documents down the road.
    So I think there are a number of common elements. I think 
Bill Leonard has recommended some of them. We have put a few in 
our specific study where we think these are common sense 
matters that shouldn't be objectionable because they already 
apply in the classification world.
    Now, I have to caution you, they will not solve the 
problem. Common sense is not going to solve the problem. We 
have massive over-classification in the classification world 
even with all these common sense checks and balances and a 
full-time audit agency and Federal judges that look at it and 
OMB that is reporting the cost figures and so forth, and ISCAP 
[ph.], which is a very useful appeals panel, that kind of 
challenge structure, an interagency challenge structure that 
pushes back against some of these kind of classifications. You 
need all those things, but you probably need something more.
    Mr. Halloran. Thank you.
    Mr. Shays. If you had been in my position, what would you 
have asked the witnesses that preceded you? Let me start with 
you, Mr. Aid. Who would you have asked, and what would you have 
    Mr. Aid. Where to begin. Actually, I thought, Mr. Chairman, 
you and the other members of the subcommittee did a very good 
job of probing the most important aspects of the 
reclassification program, which is why is this thing a secret?
    One of the questions I would have asked is you had the 
representatives of the Department of Energy and the Department 
of Defense sitting right where I am today. Why is it that the 
Department of Energy can issue an annual report giving full 
details about its document reclassification efforts, the number 
of documents that it has removed, the types of information that 
it has found, and basically give you, the Members of Congress 
who fund the Department of Energy, and us, the members of the 
public, some reassurance that what they are doing is reasonable 
and competent and that they actually are protecting U.S. 
national security?
    What disturbs me about this unnamed component of the 
Department of Defense Memorandum of Understanding and the 
separate CIA effort is that it is all done in secrecy. It is 
all done in the dead of night. There is no accountability. The 
fact is that----
    Mr. Shays. So what would you have asked them?
    Mr. Aid. I would have asked them, why was it done in 
secrecy? Why, if the program is legitimate, as they claim, I 
mean, if they say that the Executive order allows agencies to 
withdraw material because they own the classification on the 
paper, then why do you have to keep it a secret? I mean, at its 
most basic level, there is something--I guess in the legal 
profession you would call it the smell test. Does the way the 
agencies, the way they behave, does it rise to the level of 
sounding fishy, or does it seem perfectly rational, even in the 
post-September 11th world we live in?
    Mr. Shays. What would you have asked, Dr. Nelson?
    Dr. Nelson. Well, I think I would have turned my attention 
perhaps to the Archivist. I think that it is clear he was not 
there when this started. He has only been there about a year. 
But I think that one of the things I would have asked him is 
what the Archives can do about getting a little more authority 
and about standing up to certain agencies, and also perhaps 
reaching out to Congress to help them do that.
    Mr. Shays. That would have been a great question, I agree. 
Do you think that they need more authority, or do you believe 
they have inherent authority they are not exercising?
    Dr. Nelson. Well, I think that in the case of general 
Federal records, they may not be using all they have, but I 
think in security classified, I think ``Sensitive But 
Unclassified'' and ``For Official Use'' and that sort of thing, 
I think they probably need more authority because they don't 
have very much power and they are not trusted, and yet they are 
the most trustworthy people in the world----
    Mr. Shays. Not trusted by whom?
    Dr. Nelson. Not trusted by the agencies, and yet they are 
so trustworthy that when the agencies asked the archivists who 
work in the Archives not to talk about this reclassification 
business, they didn't. Otherwise, we would have known about it 
much earlier.
    Mr. Aid. Right. I can confirm that. This is actually one of 
the few agencies I have run into in my experience that actually 
knows how to keep a secret.
    Dr. Nelson. They have to.
    Mr. Blanton. They have a lot of them.
    Dr. Nelson. They have a lot of secrets, you know. They have 
all kinds of Watergate secrets. They have all kinds of 
    Mr. Shays. I see the smile on your face like--I was 
thinking, Mr. Aid, that I was going to ask you, is it kind of 
like mining for gold? When you go in there, you are looking for 
something that is--you said this is your avocation instead of 
your vocation and you said you loved history. I am a history 
major in college, and your face lights up with the joy of it, 
and I am seeing you, Dr. Nelson, all of a sudden describe there 
is Watergate and there is this and it is almost like, my gosh, 
is this like the best-kept secret? I mean, should we all be 
going in to look at these documents? [Laughter.]
    Dr. Nelson. Well, we can't look at any of those documents 
because they are still in the vault, but yes, I think for those 
of us who do this kind of work and feel it is worthwhile and 
many of us take it into the classrooms----
    Mr. Shays. Right.
    Dr. Nelson. And it sinks down to the public through 
textbooks ultimately. I think we do think that it is important, 
but we also obviously----
    Mr. Shays. So when you look at a document that is 
particularly significant, maybe changes people's view of what 
happened in the past, then that is an opportunity for you to 
publicize it and share it with others and----
    Dr. Nelson. It is very rare that one document, of course, 
will do it, and that is why historians spend so much time at 
the National Archives and in Presidential libraries to do 
American history. But, in fact, I think you are right in that 
we do see documents that do change our views. I will give you 
an example. People write memoirs. Government officials write 
memoirs. It is very interesting to see the documents when they 
come out. The memoirs are wrong. We have perhaps been teaching 
out of those memoirs, or the American people have believed 
certain things out of the memoirs. When you get right down to 
it, the memoirs might be a lie. There might be lies within them 
because the documents----
    Mr. Shays. And you determine that by the information you 
have seen at the Archives?
    Dr. Nelson. In the documents.
    Mr. Shays. Yes. Mr. Blanton, what would you have asked?
    Mr. Blanton. I would just say one caveat. The documents 
lie, too.
    Dr. Nelson. Oh, yes.
    Mr. Blanton. They only have one real virtue, which is they 
are frozen in time----
    Dr. Nelson. That is right.
    Mr. Blanton [continuing]. Unlike memory and memoirs and so 
forth, and therefore----
    Mr. Shays. Give me an example of----
    Mr. Blanton [continuing]. I think it is a cross-check.
    Dr. Nelson. Only the transcripts of telephone conversations 
really don't lie.
    Mr. Blanton. Well, I mean, you are missing that tone, but I 
would say the two questions--[laughter]--the two questions, Mr. 
Chairman, the two questions I would have asked, I think one is 
a question to Mr. Leonard and Mr. Weinstein, which is if the 
agencies don't join in and don't agree in their National 
Declassification Initiative, what are they going to do now? 
They might need you to come to their rescue. This is this 
    Mr. Shays. Give me an example of what you mean.
    Mr. Blanton. What they are trying to do----
    Mr. Shays. When you say ``agencies,'' give me these 
agencies you would be describing.
    Mr. Blanton. They called a summit of the intelligence 
agencies. They named a couple of them and they didn't name the 
other ones. They didn't name the Department of Defense 
component that has the secret memoranda that we are all after.
    Mr. Shays. Right.
    Mr. Blanton. But they called a summit of these folks last 
week, and what was interesting, the release the National 
Archives put out after the summit had a wonderful clarion call 
for cleaning up this program in the top half of the document, 
including a call for a National Declassification Initiative, 
which would, like the Nazi War Crimes Interagency Working 
Group, like the Kennedy Assassination Records Board, like what 
was done for Congress on the Iran-Contra investigation, put the 
agencies all at the table, all at the National Archives with 
the Information Security Oversight Office looking over their 
shoulder, holding their feet to the fire, making a real 
classification effort happen without this daisy chain of 
referrals and I get it next.
    Well, they brought the people to the summit. They issued 
this clarion call. But I noticed that the clarion call only 
really had Mr. Leonard and Mr. Weinstein's name on it and that 
the agencies were below the fold, in newspaper parlance, you 
would say, after the call for a declassification initiative. 
Then you see, and the agencies all agreed there was a problem 
and agreed to work with us to help solve it. But they are not 
signing on. So what do you do next if they don't agree?
    On SBU, the sensitive unclassified, I think the question I 
would have asked to Mr. Rogalski of the Department of Defense, 
you have, what did he say, 2.5 million people who can slap 
``For Official Use Only'' onto records? What is stopping him 
from cutting that number? I mean, I think the Department of 
Defense only has 2,000-and-something people who are authorized 
as original classifiers in the classification system. Would 
that help or would that not?
    Mr. Shays. I would have loved to have asked that question. 
I would love to know his answer.
    Mr. Blanton. I don't know. I encourage you to send him a 
letter. [Laughter.]
    Mr. Shays. That would have been a great question.
    Mr. Blanton. It will take him about 6 months to answer my 
letter. He will do it quicker to you.
    Mr. Shays. What would you like to put on the record that is 
not on the record right now?
    Dr. Nelson. I would like to put on the record something 
about equities.
    Mr. Shays. Move the mic a little closer, Dr. Nelson.
    Dr. Nelson. I would like to put something on the record 
about equities. Equities are the devil behind the words that 
everyone else is talking about, because the reason these 
intelligence agencies, the Department of Defense and such, have 
gone in is because they are protecting what they call their 
equities. In fact, most of the records that were closed were 
State Department records and State was not there. Equity is the 
devil of all of us who look for information.
    I have a request that has been there in the National 
Archives for at least a year and a half, maybe two, and I was 
just told that it had been sent out to three agencies and they 
hadn't heard from it. Equities are the problem, and therefore, 
I agree with Tom Blanton. You have to have some kind of an 
initiative to bring these agencies together so that everything 
on the subject is declassified without going through this whole 
business. It is the worst part of the system. It allows them to 
come back and reclassify and it keeps the rest of us waiting 
years for old, old documents.
    Mr. Shays. Anyone else? Any other comment from either of 
    I am grateful that you all are doing what you are doing. 
You are doing very important work. What I also like is you came 
to enjoy it and you have a sense of humor, which I also 
appreciate. I guess you have to have a sense of humor in this 
business, don't we.
    Mr. Blanton. Amen.
    Mr. Shays. So thank you all very much, and with that, we 
will adjourn this hearing.
    [Whereupon, at 4:55 p.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. Todd Russell Platts and 
additional information submitted for the hearing record