[Congressional Record: July 29, 2008 (House)]
[Page H7183-H7186]
REDUCING OVER-CLASSIFICATION ACT OF 2008
Ms. HARMAN. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 4806) to require the Secretary of Homeland Security to
develop a strategy to prevent the over-classification of homeland
security and other information and to promote the sharing of
unclassified homeland security and other information, and for other
purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4806
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reducing Over-Classification
Act of 2008''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) A key conclusion in the Final Report of the National
Commission on Terrorist Attacks Upon the United States
(commonly known as the ``9/11 Commission'') was the need to
prevent over-classification by the Federal Government.
(2) The 9/11 Commission and others have observed that the
over-classification of homeland security information
interferes with accurate, actionable, and timely homeland
security information sharing, increases the cost of
information security, and needlessly limits public access to
information.
(3) The over-classification problem, which has worsened
since the 9/11 attacks, causes considerable confusion about
what information can be shared with whom both internally at
the Department of Homeland Security and with its external
partners. This problem negatively impacts the dissemination
of homeland security information to the Department's State,
local, tribal, and territorial homeland security and law
enforcement partners, private sector customers, and the
public.
(4) Excessive government secrecy stands in the way of a
safer and more secure homeland. This trend is antithetical to
the creation and operation of the information sharing
environment established under section 1016 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (6
U.S.C. 485), and must be halted and reversed.
(5) To do so, the Department should start with the
understanding that all departmental information that is not
properly classified, or marked as controlled unclassified
information and otherwise exempt from disclosure, should be
made available to members of the public pursuant to section
552 of title 5, United States Code (commonly referred to as
the ``Freedom of Information Act'').
(6) The Department should also develop and administer
policies, procedures, and programs that promote compliance
with applicable laws, executive orders, and other authorities
pertaining to the proper use of classification markings and
the United States National Archives and Records
Administration policies implementing them.
SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE DEPARTMENT
OF HOMELAND SECURITY.
Subtitle A of title II of the Homeland Security Act of 2002
(6 U.S.C. 121 et seq.) is amended by adding at the end the
following new section:
``SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.
``(a) In General.--The Secretary shall develop and
administer policies, procedures, and programs within the
Department to prevent the over-classification of homeland
security information, terrorism information, weapons of mass
destruction information, and other information within the
scope of the information sharing environment established
under section 1016 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (6 U.S.C. 485) that must be
disseminated to prevent and to collectively respond to acts
of terrorism. The Secretary shall coordinate with the
Archivist of the United States and consult with
representatives of State, local, tribal, and territorial
government and law enforcement, organizations with expertise
in civil rights, civil liberties, and government oversight,
and the private sector, as appropriate, to develop such
policies, procedures, and programs.
``(b) Requirements.--Not later than one year after the date
of the enactment of the Reducing Over-Classification Act of
2008, the Secretary, in administering the policies,
procedures, and programs required under subsection (a),
shall--
``(1) create, in consultation with the Archivist of the
United States, standard classified and unclassified formats
for finished intelligence products created by the Department,
consistent with any government-wide standards, practices or
procedures for similar products;
``(2) require that all finished intelligence products
created by the Department be simultaneously prepared in the
standard unclassified format, provided that such an
unclassified product would reasonably be expected to be of
any benefit to a State, local, tribal or territorial
government, law enforcement agency or other emergency
response provider, or the private sector, based on input
provided by the Interagency Threat Assessment and
Coordination Group Detail established under section 210D;
``(3) ensure that such policies, procedures, and programs
protect the national security as well as the information
privacy rights and legal rights of United States persons
pursuant to all applicable law and policy, including the
privacy guidelines for the information sharing environment
established pursuant to section 1016 of the Intelligence
Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485),
as appropriate;
``(4) establish an ongoing auditing mechanism administered
by the Inspector General of the Department or other
appropriate senior Department official that randomly selects,
on a periodic basis, classified information from each
component of the Department that generates finished
intelligence products to--
``(A) assess whether applicable classification policies,
procedures, rules, and regulations have been followed;
``(B) describe any problems with the administration of the
applicable classification
[[Page H7184]]
policies, procedures, rules, and regulations, including
specific non-compliance issues;
``(C) recommend improvements in awareness and training to
address any problems identified in subparagraph (B); and
``(D) report at least annually to the Committee on Homeland
Security of the House of Representatives, the Committee on
Homeland Security and Governmental Affairs of the Senate, and
the public, in an appropriate format, on the findings of the
Inspector General's audits under this section;
``(5) establish a process whereby employees may challenge
original classification decisions made by Department
employees or contractors and be rewarded with specific
incentives for successful challenges resulting in the removal
of classification markings or the downgrading of them;
``(6) inform employees and contractors that failure to
comply with the policies, procedures, and programs
established under this section could subject them to a series
of penalties; and
``(7) institute a series of penalties for employees and
contractors who repeatedly fail to comply with the policies,
procedures, and programs established under this section after
having received both notice of their noncompliance and
appropriate training or re-training to address such
noncompliance.
``(c) Finished Intelligence Product Defined.--The term
`finished intelligence product' means a document in which an
intelligence analyst has evaluated, interpreted, integrated,
or placed into context raw intelligence or information.''.
SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION WITHIN
THE DEPARTMENT OF HOMELAND SECURITY.
Subtitle A of title II of the Homeland Security Act of 2002
(6 U.S.C. 121 et seq.) is further amended by adding at the
end the following new section:
``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION
PROGRAMS.
``(a) Personal Identifiers.--The Secretary shall--
``(1) assess the technologies available or in use at the
Department by which an electronic personal identification
number or other electronic identifying marker can be assigned
to each Department employee and contractor with original
classification authority in order to--
``(A) track which documents have been classified by a
particular employee or contractor;
``(B) determine the circumstances when such documents have
been shared;
``(C) identify and address over-classification problems,
including the misapplication of classification markings to
documents that do not merit such markings; and
``(D) assess the information sharing impact of any such
problems or misuse;
``(2) develop an implementation plan for a Department
standard for such technology with appropriate benchmarks, a
timetable for its completion, and cost estimate for the
creation and implementation of a system of electronic
personal identification numbers or other electronic
identifying markers for all relevant Department employees and
contractors; and
``(3) upon completion of the implementation plan described
in paragraph (2), or not later than 180 days after the date
of the enactment of the Reducing Over-Classification Act of
2008, whichever is earlier, the Secretary shall provide a
copy of the plan to the Committee on Homeland Security of the
House of Representatives and the Committee on Homeland
Security and Governmental Affairs of the Senate.
``(b) Training.--The Secretary, in coordination with the
Archivist of the United States, shall--
``(1) require annual training for each Department employee
and contractor with classification authority or those
responsible for analysis, dissemination, preparation,
production, receiving, publishing, or otherwise communicating
written classified information, including training to--
``(A) educate each employee and contractor about--
``(i) the Department's requirement that all classified
finished intelligence products that they create be
simultaneously prepared in unclassified form in a standard
format prescribed by the Department, provided that the
unclassified product would reasonably be expected to be of
any benefit to a State, local, tribal, or territorial
government, law enforcement agency, or other emergency
response provider, or the private sector, based on input
provided by the Interagency Threat Assessment and
Coordination Group Detail established under section 210D;
``(ii) the proper use of classification markings, including
portion markings; and
``(iii) the consequences of over-classification and other
improper uses of classification markings, including the
misapplication of classification markings to documents that
do not merit such markings, and of failing to comply with the
Department's policies and procedures established under or
pursuant to this section, including the negative consequences
for the individual's personnel evaluation, homeland security,
information sharing, and the overall success of the
Department's missions;
``(B) serve as a prerequisite, once completed successfully,
as evidenced by an appropriate certificate, for--
``(i) obtaining classification authority; and
``(ii) renewing such authority annually; and
``(C) count as a positive factor, once completed
successfully, in the Department's employment, evaluation, and
promotion decisions; and
``(2) ensure that such program is conducted efficiently, in
conjunction with any other security, intelligence, or other
training programs required by the Department to reduce the
costs and administrative burdens associated with the
additional training required by this section.
``(c) Detailee Program.--The Secretary shall--
``(1) implement a Departmental detailee program to detail
Departmental personnel to the National Archives and Records
Administration for one year, for the purpose of--
``(A) training and educational benefit for the Department
personnel assigned so that they may better understand the
policies, procedures and laws governing original
classification authorities;
``(B) bolstering the ability of the National Archives and
Records Administration to conduct its oversight authorities
over the Department and other Departments and agencies; and
``(C) ensuring that the policies and procedures established
by the Secretary remain consistent with those established by
the Archivist of the United States;
``(2) ensure that the program established under paragraph
(1) includes at least one individual for each Department
office with delegated original classification authority; and
``(3) in coordination with the Archivist of the United
States, report to Congress not later than 90 days after the
conclusion of the first year of the program established under
paragraph (1), on--
``(A) the advisability of expanding the program on a
government-wide basis, whereby other departments and agencies
would send detailees to the National Archives and Records
Administration; and
``(B) the administrative and monetary costs of full
compliance with this section.
``(d) Sunset of Detailee Program.--Except as otherwise
provided by law, subsection (c) shall cease to have effect on
December 31, 2012.
``(e) Finished Intelligence Product Defined.--The term
`finished intelligence product' has the meaning given the
term in section 210F(c).''.
SEC. 5. TECHNICAL AMENDMENT.
The table of contents in section 1(b) of the Homeland
Security Act of 2002 (6 U.S.C. 101(b)) is amended by adding
after the item relating to section 210E the following new
items:
``Sec. 210F. Over-classification prevention program.
``Sec. 210G. Enforcement of over-classification prevention programs.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
California (Ms. Harman) and the gentleman from Florida (Mr. Bilirakis)
each will control 20 minutes.
The Chair recognizes the gentlewoman from California.
General Leave
Ms. HARMAN. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from California?
There was no objection.
Ms. HARMAN. Mr. Speaker, I yield myself such time as I may consume,
and I would like to include in the Record an exchange of letters
between the distinguished chairmen of the Committees on Homeland
Security and Oversight and Government Reform.
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, July 24, 2008.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security, Ford House Office
Building, Washington, DC.
Dear Chairman Thompson: I am writing about H.R. 4806, the
Reducing Over-Classification Act of 2008, which the Homeland
Security Committee ordered reported to the House on June 26,
2008.
I appreciate your effort to consult with the Committee on
Oversight and Government Reform regarding H.R. 4806. In
particular, I appreciate your willingness to work with me to
move a governmentwide over-classification bill, H.R. 6575, to
the House floor so that H.R. 4806 and H.R. 6575 can be
considered during the same week.
In the interest of expediting consideration of H.R. 4806
and in recognition of your efforts to address my concerns,
the Oversight Committee will not request a sequential
referral of this bill. I would, however, request your support
for the appointment of conferees from the Oversight Committee
should H.R. 4806 or a similar Senate bill be considered in
conference with the Senate.
Notwithstanding the Oversight Committee's agreement to
forgo a sequential referral, I believe it is important to
reiterate my general concern about H.R. 4806 as it applies to
the Department of Homeland Security.
H.R. 4806 creates procedures for the Department to follow
in order to reduce the over-classification of information.
Several
[[Page H7185]]
congressional investigations and the 9/11 Commission have
emphasized, however, that over-classification is a
governmentwide problem that requires a governmentwide
solution. Accordingly, I favor an approach that requires all
agencies to follow the same classification protocols and
encourages the sharing of information between agencies and
with the public to the maximum extent possible.
Again, thank you for your efforts to address my concerns
with H.R. 4806. I look forward to working with you to reduce
the significant problem of over-classification throughout the
federal government.
This letter should not be construed as a waiver of the
Oversight Committee's legislative jurisdiction over subjects
addressed in H.R. 4806 that fall within the jurisdiction of
the Oversight Committee.
Please include our exchange of letters on this matter in
the Homeland Security Committee Report on H.R. 4806 and in
the Congressional Record during consideration of this
legislation on the House floor.
Sincerely,
Henry Waxman,
Chairman.
____
House of Representatives, Committee on Homeland Security,
Washington, DC, July 24, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Rayburn House Office Building,
Washington, DC.
Dear Chairman Waxman: Thank you for your letter regarding
H.R. 4806, the ``Reducing Over-Classification Act of 2007,''
introduced by Congresswoman Jane Harman on December 18, 2007.
I appreciate your willingness to work cooperatively on this
legislation. I acknowledge that H.R. 4806 contains provisions
that fall under the jurisdictional interests of the Committee
on Oversight and Government Reform. I appreciate your
agreement to not seek a sequential referral of this
legislation and I acknowledge that your decision to forgo a
sequential referral does not waive, alter, or otherwise
affect the jurisdiction of the Committee on Oversight and
Government Reform.
Further, I recognize that your Committee reserves the right
to seek appointment of conferees on the bill for the portions
of the bill that are within your jurisdiction, and I agree to
support such a request.
I will ensure that this exchange of letters is included in
the Committee's report on H.R. 4806 and in the Congressional
Record during floor consideration of H.R. 4806. I look
forward to working with you on this legislation and other
matters of great importance to this nation.
Sincerely,
Bennie G. Thompson,
Chairman.
Mr. Speaker, I am pleased to manage the time for four outstanding
bipartisan bills that are the product of work by the Homeland Security
Committee's Intelligence Subcommittee, which I chair. I am also pleased
to have witnessed the debate on four bills just previously which are
the product of the Homeland Security Committee and which I believe
merit strong support by the full House. They are excellent bills. They
are bipartisan. The members of the committee and the staff are to be
commended for putting forward good policy, even in these toxic times.
The bills before us now, Mr. Speaker, tackle the challenge of
information sharing in novel ways, and they too enjoy wide support.
During my 8 years as a member of the House Permanent Select Committee
on Intelligence, four years as ranking member, I became incredibly
frustrated with the rampant over-classification and selective
declassification of intelligence. I believe, Mr. Speaker, that my
colleagues on both sides of the aisle in that committee felt the same
way. This administration has elevated the practice of over-
classification and selective declassification to an art form and today
this problem has spread throughout the government, including recently
established Department of Homeland Security.
Information and materials should, in my view, be classified for one
primary reason: to protect sources and methods. It is no exaggeration
that people die and our ability to monitor certain targets can be
compromised if sources and methods are revealed; but, Mr. Speaker,
classifying information for the wrong reasons, that would be to protect
turf or to avoid embarrassment, is wrong. In fact, this practice can do
great harm if it bars local law enforcement, America's first
preventers, from accessing the information they need to prevent or
disrupt a potential terrorist attack.
Mr. Speaker, the next attack in the United States will not be stopped
because a bureaucrat in Washington, DC found out about it in advance.
It will be the cop on the beat who is familiar with the rhythms and
nuances of his or her own neighborhood who will foil that attack. H.R.
4806, the Reducing Over-Classification Act of 2008, is an attempt to
stop turf protection and embarrassment protection as well as to
establish a gold standard for DHS when it comes to classification
practices.
As I mentioned, the bill was marked up and approved on a unanimous
basis by both our subcommittee and the full committee in June. The bill
will require that all classified intelligence products created at DHS
be simultaneously created in a standard unclassified format, and this
is unprecedented, if such a product would help both police and
sheriff's officers keep us safe. Furthermore, the bill requires portion
marking, the identification of paragraphs in a document that are
classified, permitting the remainder of the document to remain
unclassified, so that information reaches the first preventers who need
it.
The bill will promote accountability by requiring the Secretary of
DHS to create an auditing mechanism for the Inspector General of DHS to
randomly sample classified intelligence products and identify problems
that exist in those samples. Here again, this is a way to get at over-
classification.
Finally, the legislation requires the Secretary to establish
penalties for staff who repeatedly fail to comply with applicable
classification policies, despite notice of their noncompliance and an
opportunity to undergo retraining.
Mr. Speaker, technology is another part of the solution to over-
classification, and so our legislation directs the Secretary to develop
a plan to track electronically how and where information classified by
DHS is disseminated so that misuse can be prevented.
Finally, it requires an extensive annual training on the proper use
of the classification regime. This training will serve as a
prerequisite to obtaining classification authority and to renewing it
each year. In other words, this means that not everyone can classify
material. You have to be properly trained, and if you abuse your
position, you may not get to continue to be in that role.
These changes, in addition to helping local law enforcement push
important information out to the public. A major key to homeland
security is personal preparedness. The public has a right to know non-
classified information, and this bill promotes that right. It enjoys
support by privacy and civil liberty groups. I want you to know, Mr.
Speaker, I am working with our colleague, Mr. Waxman, to see whether I
can help him craft legislation to apply these principles government-
wide.
Mr. Speaker, on behalf of first preventers and first responders
everywhere, I urge passage of this essential legislation.
Mr. Speaker, I reserve the balance of my time.
{time} 1315
Mr. BILIRAKIS. Mr. Speaker, I yield myself such time as I may
consume.
I rise today in support of H.R. 4806, the Reducing Over-
Classification Act sponsored by my Homeland Security colleague,
Representative Jane Harman, the distinguished subcommittee Chair on
Intelligence.
H.R. 4806 requires the Secretary of Homeland Security to develop and
administer policies, procedures, and programs to prevent the over-
classification of homeland security information. This bill requires the
Department of Homeland Security to continue its current practice of
producing unclassified versions of the majority of its classified
products.
For example, just last month when the Department produced its
classified periodic review of border security issues facing the United
States, it produced an unclassified version as well. The bill specified
that law enforcement agencies, emergency first responders, and private
sector customers should benefit from these products, thus reinforcing
the Department's commitment to State and local entities. Hopefully,
this will encourage the widest possible dissemination of these
unclassified products to better inform our frontline agencies.
Mr. Speaker, H.R. 4806 will further strengthen ongoing efforts to
prevent the over-classification of homeland security information, and I
look forward to its passage.
[[Page H7186]]
I reserve the balance of my time
Ms. HARMAN. Mr. Speaker, I reserve the balance of my time.
Mr. BILIRAKIS. Mr. Speaker, I would like to reiterate that we need
the appropriations and the authorization Homeland Security bills on the
floor this year.
I yield back the balance of my time.
Ms. HARMAN. Mr. Speaker, I yield myself such time as I may consume.
I want to thank Mr. Bilirakis for his generous comments and for his
strong support of this legislation. I think this is landmark
legislation. I think our committee will get enormous attention for
finally trying to attack this insidious problem of overclassification,
and I very much appreciate his personal support.
I also want to tell him that I have watched him raise this issue
about authorization and appropriation, the need for both actions, by
this House. I agree with him. I think we need an authorization of this
bill this year. And it is my understanding that all of the individual
bills we are debating this afternoon will be included in that
authorization bill. So I thank him for pointing out the need for us to
act.
In conclusion, Mr. Speaker, of the bills that I am managing on the
floor this afternoon, this is the one that I feel most strongly about.
This is the one that will make the biggest difference. If we can get
classification right at the Department of Homeland Security, a new
department, we can then get it right in the rest of the government.
As I mentioned earlier, I am working with Mr. Waxman and others on
his committee to see whether we can craft a bill that manages properly
all the equities involved in taking this approach governmentwide, but I
hope we can work that out. I think this bill sets the right precedent.
I urge its passage by the full House.
I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from California (Ms. Harman) that the House suspend the
rules and pass the bill, H.R. 4806, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. BILIRAKIS. Mr. Speaker, I object to the vote on the ground that a
quorum is not present and make the point of order that a quorum is not
present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
The point of no quorum is considered withdrawn.
____________________
[Congressional Record: July 30, 2008 (House)]
[Page H7596]
REDUCING OVER-CLASSIFICATION ACT OF 2008
The SPEAKER pro tempore. The unfinished business is the question on
suspending the rules and passing the bill, H.R. 4806, as amended.
The Clerk read the title of the bill.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from California (Ms. Harman) that the House suspend the
rules and pass the bill, H.R. 4806, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________
