Congressional Record: March 3, 1998 (Senate)
Page S1249-S1253
THE GOVERNMENT SECRECY ACT
Mr. LOTT. Mr. President, I am pleased to join with the distinguished
Minority Leader, the distinguished Chairman of the Foreign Relations
Committee and with the distinguished Senator from New York, Mr.
Moynihan. Both Senator Moynihan and Senator Helms served with
distinction on the Commission on Protecting and Reducing Government
Secrecy. They are to be congratulated for their efforts. Senator
Moynihan and I have spoken repeatedly about his commitment to
declassifying information while protecting legitimate secrets.
S. 712, the Government Secrecy Act of 1997, is a complex piece of
legislation. Chairman Thompson has already held a hearing in the
Governmental Affairs Committee. Other committees have legitimate and
appropriate concerns about elements of this legislation, including
Foreign Relations, Judiciary, Armed Services and the Select Committee
on Intelligence on which I serve as an ex officio member. Their
concerns should be addressed as we move through the legislative
process.
I also have a number of concerns that I hope are addressed as the
committees consider this legislation. I am concerned about allowing
judicial review of executive branch classification decisions. I do not
think it is wise or necessary to allow judges to second-guess
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classification decisions. I am concerned about cost--the cost of
classification and the cost of declassification. I hope we can arrive
at a legislative outcome that reduces the cost of both. I am concerned
about creating a new layer of bureaucracy in an already overly
bureaucratic process. It is the agencies themselves that should retain
the authority to declassify documents. I am most concerned that we give
priority to protecting intelligence sources and methods rather than to
a vague and subjective "public interest" test. We need to ensure that
originating agencies are expressly involved in any declassification
process to avoid the mistakes that have recently been made. I also hope
there is adequate authority for agencies to meet their legitimate
budgetary and source-protection concerns.
I am confident that the deliberative process of committee
consideration will address my concerns and the legitimate concerns
expressed by the Defense Department, the intelligence community, and
others. I know that the Director of Central Intelligence testified last
month that he wants to sit down with Senator Moynihan and address those
concerns in such a way that we protect sources and methods while
opening more old intelligence files to the serious researcher and the
general public. I hope that this process of committee consideration can
be completed this spring and that we can expeditiously schedule floor
time for legislation addressing this important issue.
I want to close with a special tribute to Senator Moynihan's
diligence in this effort. He is not just motivated by the fact that too
much information is classified and is kept secret too long. He is also
motivated by a scholar's desire to know the truth, and by the
historian's desire to fully explain past events. I salute his efforts
and share his concerns. Openness is important in our democracy. In the
words of the Secrecy Commission, chaired by Senator Moynihan, "Secrecy
is a form of government regulation . . . some secrecy is vital to save
lives, bring miscreants to justice, protect national security, and
engage in effective diplomacy . . . National Security will continue to
be the first of our national concerns, but we also need to develop
methods for the treatment of government information that better serve,
not undermine, this objective." In the words of Chairman Moynihan
himself: "It is time also to assert certain American fundamentals,
foremost of which is the right to know what government is doing, and
the corresponding ability to judge its performance." I could not agree
more.
I look forward to continuing to work with Senator Moynihan and others
in enacting legislation on government secrecy this year.
Mr. DASCHLE. I thank the Majority Leader for raising this important
issue and am pleased to join him as a co-sponsor of the Government
Secrecy Act. I look forward to working with him, the other co-sponsors
of the bill, and the relevant committees to move this legislation early
in this session. Although some modifications to this legislation may be
necessary, I think we can all agree that a democratic government
depends on an informed public. This legislation will greatly improve
access to government information. By reducing the number of secrets,
this legislation will enhance the public's access while at the same
time enabling the government to better protect information which is
truly sensitive.
As the Majority Leader mentioned, for the past five decades, the
secrecy system has been governed by a series of six Executive Orders,
none of which has created a stable system that protects only that
information deemed vital to the national security of the United States.
Mr. MOYNIHAN. I thank the two leaders for their support and welcome
them to an effort that began in the 103rd Congress with the adoption of
P.L. 103-236, establishing the Commission on Protecting and Reducing
Government Secrecy. This bi-partisan commission, which I had the
privilege of chairing, and on which Senator Helms played an important
role, issued its unanimous report last March. The Commission found that
the current system neither protects nor releases national security
information particularly well.
Mr. HELMS. Mr. President, I thank the distinguished leaders, but I am
also deeply grateful to the able senior Senator from New York. For too
long the government has classified information which has no business
being classified. When I came to the Senate, I was a member of the
Armed Services Committee and I remember that I went to many classified
briefings, only to be informed, in great detail, of everything that was
in the New York Times and Washington Post that morning. The most
frustrating thing was that we could not talk about the information from
those meetings because it was classified.
Mr. MOYNIHAN. The central fact is that we live today in an
information age. Open sources give us the vast majority of what we need
to know in order to make intelligent decisions. Analysis, far more than
secrecy, is the key to security. Decisions made by people at ease with
disagreement and ambiguity and tentativeness. Decisions made by those
who understand how to exploit the wealth and diversity of publicly
available information, who no longer simply assume that clandestine
collection, i.e. "stealing secrets", equates with greater
intelligence.
We are not going to put an end to secrecy. It is at times legitimate
and necessary. But a culture of secrecy need not remain the norm in
American government as regards national security. It is possible to
conceive that a competing culture of openness might develop which could
assert and demonstrate greater efficiency.
Mr. HELMS. The Commission by law had two goals: to study how to
protect the important government secrets while simultaneously reducing
the enormous amount of classified documents and materials. We began our
deliberations with the premise that government secrecy is a form of
regulation, and like all regulations, should be used sparingly. But I
feel obliged to reiterate and emphasize the obvious. The protection of
true national security information remains vital to the well-being and
security of the United States.
Mr. MOYNIHAN. I agree with the Senator. One of the important
recommendations of the Commission was a proposal for a statute
establishing a general classification regime and creating a national
declassification center. The four Congressional members of the
Commission, Representatives Combest and Hamilton, Senator Helms, and I,
proposed just such a statute last May, the Government Secrecy Act,
S.712.
Mr. DASCHLE. In deciding that we needed to design a better, more
rational classification system, I was moved by the fact that under the
current system we are classifying an enormous amount of information
each and every year. For example, in 1996 alone, the Federal Government
created 386,562 Top Secret, 3,467,856 Secret, and 1,830,044
Confidential items: a total of 5,789,625 classification actions.
Mr. MOYNIHAN. Last year the number of officials with the authority to
classify documents originally decreased by 959 to 4,420. Presumably,
this should reduce the number of classifications, but the number of
classifications increased by nearly two-thirds, over 5.7 million. There
cannot be 5.7 million secrets a year which, if revealed, would cause
"damage" to the national security. To paraphrase Justice Potter
Stewart's decision regarding the Pentagon Papers, when everything is
secret, nothing is secret.
Mr. DASCHLE. In addition to costing the taxpayer billions annually,
this excessive government secrecy leads to a host of other problems.
Secrecy hampers the exchange of information within the government,
leads to public mistrust, and makes leaking classified information the
norm.
I think it would be useful at this point to note that this
legislation will not require the disclosure of a single document or
fact deemed vital to our national security. Instead, this legislation
will prevent the government from stamping "Classified" on information
that is not sensitive.
The Clinton administration has made significant reforms to open
government information. For example, last month, Secretary of Energy
Federico Pena announced that he would seek to end the practice that
considered all atomic weapons information as "born
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classified" and instead would only classify "where there is a
compelling national security interest". The Department of Energy is to
be commended for its efforts in recent years to make available
information concerning nuclear tests conducted in this country and
their effects on human health and the environment. This is a useful
step. However, as the statistics I cited above for 1996 make clear,
there is still much more to be done.
Mr. MOYNIHAN. Such efforts are welcome and should be encouraged.
However, to ensure that they are carried out across the government and
in a sustained manner, our Commission proposed that legislation be
adopted.
Mr. DASCHLE. Greater Congressional oversight of classification policy
is long overdue. For too long, classification and declassification
policy have been both developed and implemented by bureaucrats, often
anonymously. Consideration of the Government Secrecy Act, S.712, will
promote an open discussion of the advantages and disadvantages of
secrecy, a discussion which is not limited to the views of those who
are charged with implementing classification policy.
Mr. MOYNIHAN. If the Report of the Commission on Protecting and
Reducing Government Secrecy is to serve any large purpose, it is to
introduce the public to the thought that secrecy is a mode of
regulation. In truth, it is the ultimate mode, for the citizen does not
even know that he or she is being regulated. Normal regulation concerns
how citizens must behave, and so regulations are widely promulgated.
Secrecy, by contrast, concerns what citizens may know. The citizen is
not told what may not be known.
With the arrival of the New Deal agencies in the 1930s, it became
clear that public regulation needed to be made more accessible to the
public. In 1935, for example, the Federal Register began publication.
Thereafter all public regulations were published and accessible. In
1946, the Administrative Procedure Act established procedures by which
the citizen can question and even litigate regulation. In 1966, the
Freedom of Information Act, technically an amendment to the original
1946 Act, provided citizens yet more access to government files.
The Administrative Procedure Act brought some order and
accountability to the flood of government regulations that at time bids
fare to overwhelm us. Even so, "over-regulation" is a continuing
theme in American life, as in most modern administrative states.
Secrecy would be such an issue, save that secrecy is secret. Make no
mistake, however. It is a parallel regulatory regime with a far greater
potential for damage if it malfunctions.
Mr. DASCHLE. One of the most striking aspects of the Commission
report is the lack of Congressional involvement in the secrecy system.
Apart from the Espionage Act of 1917 and the Atomic Energy Act, which
only applies to atomic secrets, there are few statutes dealing with
these issues. If secrecy is a form of regulation, then this legislation
will serve a similar purpose to the Administrative Procedure Act for
the secrecy system.
And there has been little Congressional oversight. I believe the
Commission on Protecting and Reducing Government Secrecy, which Senator
Moynihan chaired, is only the second statutory examination of the
secrecy system.
Mr. MOYNIHAN. That is correct--there has been only one other
statutory inquiry into this subject. This was the Commission on
Government Security, established in 1955 by the 84th Congress, known as
the Wright Commission for its Chairman, Lloyd Wright, past President of
the American Bar Association. This was a distinguished bipartisan body,
which included in its membership Senators John C. Stennis of
Mississippi and Norris Cotton of New Hampshire, along with
Representatives William M. McCulloch of Ohio and Francis E. Walter of
Pennsylvania.
The Commission report, issued 40 years ago, is a document of careful
balance and great detail. The Commission was concerned with
classification as a cost. Free inquiry, like free markets, is the most
efficient way to get good results. The Commission set forth a great
many proposals ranging from Atomic Energy to Passport Security, but its
legislative proposals were concise: the proposal to outlaw by statute
"disclosures of classified information. . . by persons outside as well
as within the Government" was quickly perceived as prior restraint:
press censorship. The response was swift and predictable. The
recommendation was criticized strongly in articles and editorials in a
variety of newspapers, notably by James Reston. And the Commission's
recommendations were dropped.
Mr. DASCHLE. The Government Secrecy Commission has learned from
history and issued much more prudent proposals. Some individuals have
raised constitutional concerns regarding this legislation, but the
Government Secrecy Act (S. 712) respects the President's constitutional
prerogatives by maintaining the authority of the President to establish
categories of classified information and procedures for classifying
information. The precedent for Congressional action has already been
established by the Atomic Energy Act, the Espionage Act, and the
National Security Act.
Mr. MOYNIHAN. The Government Secrecy Act will provide a framework for
our secrecy system which can limit the number of documents initially
classified and significantly reduce the backlog of already classified
documents. It sets standards for declassification whereby information
may not remain classified for longer than 10 years unless the head of
the agency which created the information certifies to the President
that the information requires continued protection. Information not
declassified within 10 years may not remain classified for more than 30
years without another certification. It requires that a balancing test
be established in making classification and declassification decisions
so that officials must weigh the benefit from public disclosure of
information against the need for initial or continued protection of the
information under the classification system.
The bill also establishes a national declassification center to
coordinate and oversee the declassification policies and practices of
the Federal Government to ensure that declassification is efficient,
cost-effective, and consistent.
I thank the Majority Leader for raising his concerns. It is my
sincere intention to work with the Majority Leader and other interested
Senators to perfect this legislation, so that we might pass it in the
coming months.
Mr. SHELBY. Mr. President, I rise because I have some grave concerns
with the current form of the Government Secrecy Act of 1997 (S. 712)
and I am pleased that the distinguished Majority Leader and my
distinguished colleagues are open to a discussion of this legislation
with the goal of establishing the basic principles on which Federal
classification and declassification programs are to be based. More
stability, reliability, and consistency are needed in the government's
approach to both the protection--and I emphasize protection--as well as
the release of classified information to the public. The recent
compromise of sensitive information through rushed declassification
highlights the need for more oversight and accountability of the
declassification process. I have serious concerns that S. 712 does not
adequately protect sensitive intelligence sources and methods and will
unnecessarily cost the taxpayers many hundreds of millions of dollars.
I support the Commission on Government Secrecy's finding that the
public has a right of access to the large majority of government-held
information and that, in general, too much information is classified
and kept secret too long. However, secrecy is essential to
intelligence, and U.S. security has depended and still depends on
secrecy to succeed. We must proceed with caution in our commitment to
make more classified information available to the public. In this
regard, I am concerned that some provisions of S. 712 erode the
Director of Central Intelligence's statutory authority and ability to
protect intelligence sources and methods.
Further, the bill will cost untold millions to declassify and release
the tremendous amount of currently classified material in a way that
still protects the most sensitive sources and methods. For example, DOD
reports to have over 1.2 billion pages of 25 year and older material of
historical value that requires review for declassification. The current
estimated average cost of
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review is $1 a page. This means that the cost of declassification of
this group of documents alone will be over $1.2 billion--that's billion
with a "B", Mr. President.
I am also concerned that the so-called Declassification Center
created in S. 712 will not correct the problems facing the current
declassification system. It will end up being another costly and
unnecessary government bureaucracy. Instead, to promote greater
accountability, I propose that we create a more effective and enhanced
Executive branch oversight function for classification and
declassification programs. In addition, I believe sanctions for
unauthorized disclosures should be added to the bill. We need to
consider new and unique categories of secrecy for our most sensitive
intelligence operations--perhaps to include very serious penalties for
public discussion of these activities.
Finally, I am troubled that the bill leaves open the possibility of
judicial review of Executive branch classification decisions. This will
undoubtedly lead to costly legal challenges that could result in
judicial second-guessing of the Commander-in-Chief on national security
matters.
I look forward to addressing these and other concerns in our
Committee. Our collective goal should be to craft legislation that
establishes a sensible framework for a classification and
declassification system that continues to protect sources and methods
while improving oversight and accountability at an affordable cost.
Thank you, Mr. President.
Mr. KERREY. Mr. President, for Americans government secrecy is a
paradox. In a democracy, it's an unusual action for us to decide to
keep something secret from the public, because it's their government.
What we do is for the people. It's carried out in their name. So it's
unusual to do the public's business in secret.
There is only one legitimate reason for our government to keep
something secret from its citizens: To keep America safe. As Vice
Chairman of the Senate Select Committee on Intelligence, I have been
exposed to many things that, if made public, would threaten the
security of our citizens and our nation. But I have also seen valuable
information unnecessarily kept from the public view. Which is why I
support this effort to change the way our government classifies and
declassifies its information.
Secrecy is the exception, not the rule, in these matters for a number
of reasons. The first and foremost is that this is government of, by
and for the people. The second stems from that old adage "sunshine is
the best disinfectant". We do a better job in the open, where our
ideas and actions are subject to the test of scrutiny, criticism and
feedback, than we do in secret. And third, because information we
gather belongs to the people, we should make sure information they can
use--in their own lives, in their own businesses, and, most important,
in making decisions as citizens in a democracy--is provided to them
when we can make it available without compromising our safety.
We make the unusual decision to keep things secret for a reason:
Because those secrets help to keep Americans safe. Our government
classifies information to help protect our citizens and preserve the
security of our nation. When the Director of Central Intelligence goes
to the President or to Congress to tell us of the threats our nation
faces, he can do so because there are men and women around the globe
risking their lives to provide our nation's leaders with the
information they need to protect our country. Whether the intelligence
deals with foreign leaders, terrorists, narcotics traffickers, or
military troop movements, our government needs to keep certain
information secret or our nation's security will suffer.
Yet much of the information on foreign countries collected by our
Intelligence Community can and should be shared with the American
people. With the growth of open source information and widespread
availability of information technology, the American public is also
increasingly a consumer of intelligence. We live in a very complex
world, with intertwining relationships between nations shaped by
history and culture. It is difficult for policymakers--those of us who
study foreign policy, who have access to classified information and
analysis, and who receive detailed government briefings--to get the
information we need for an informed view on foreign policy issues. Our
citizens have an even more limited amount of information available to
help them understand what occurs outside our nation's border. Which is
why I believe the more information the American public has with which
to understand foreign policy the better.
Mr. President, we need to continue to protect "sources and
methods", a term of art which refers to the people working to collect
intelligence and the means by which they do so. Yet, when we acquire
information whose release will not threaten sources and methods, or
have information so dated that the people and means used to collect it
are no longer in jeopardy, the government should release this
information to the public.
We must act this year to reverse a fifty year trend and reduce
government secrecy, including intelligence secrecy. The classification
system has been regulated by executive order for five decades, with new
executive orders contradicting previous ones and producing new costs
for all agencies involved. What is or is not a secret should not be
subject to a change in political leadership. Congress should place in
statute the concept of what is or is not classified information, and
provide general standards for classifying and declassifying
information.
Mr. President, Congress bears some of the responsibility for the
status of our nation's classification policy. The Commission on
Protecting and Reducing Government Secrecy was not able to find a
single example of a congressional hearing on the issue of executive
branch secrecy policy. At the very least, Congress needs to improve its
oversight of this issue. As part of this effort, the Senate Select
Committee on Intelligence is scheduled to hold a hearing on this issue
later this year.
Senators Moynihan and Helms have shown great leadership in addressing
the issue of governmental secrecy. Their work on the Secrecy Commission
has helped provide the Senate with the necessary context and analysis
of government secrecy we need to address this issue. Their legislation
S. 712, the Government Secrecy Act of 1997, goes a long way towards
outlining a balanced government policy which protects the most
sensitive information while allowing the public access to as much
information as possible.
In my discussions with Director of Central Intelligence George Tenet,
I have learned that the Intelligence Community does have concerns with
the current version of S. 712. The CIA's concerns include their desire
that the originator of classified information be in charge of its
declassification, and that the classification and declassification
process not be subject to judicial review. I look forward to working
with Senators Helms and Moynihan, with Director Tenet, and the
Administration to develop legislative language which meets the twin
goals of keeping America safe and ensuring our government responds to
the needs of its citizens for information.
Because the Department of Defense and the Central Intelligence Agency
are responsible for the vast majority of information that requires
classification, I believe the committees responsible for oversight of
these entities--the Senate Armed Services Committee and the Senate
Select Committee on Intelligence--should have the opportunity to review
S. 712. I hope that such a sequential referral can be arranged.
Mr. President, we seek legislation that is in balance. We seek
secrecy legislation which protects the safety of our citizens and the
security of our nation, but also ensures that our government's
policies, actions, and information will be as open as possible to its
citizens. We must help keep America safe, while also assuring that our
actions truly reflect those of a government of, by and for the people.
I look forward to the challenge. I yield the floor.
Mr. THOMPSON. Mr. President, I appreciate the attention being given
to the Government Secrecy Act, S. 712, by Senator Lott and Senator
Daschle. I also wish to commend Senators Moynihan and Helms for the
hard work they have put into this issue as Senate members of the
Commission on Protection and Reducing Government Secrecy.
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To review the entire secrecy system, Congress established the Secrecy
Commission in 1994. Last year, the Commission issued its final report.
The Governmental Affairs Committee held a hearing on the Commission's
recommendations when they were first issued. Among the recommendations
of the Commission was establishing a statutory basis for our secrecy
system. Apart from nuclear secrets, there has never been a coordinated
statutory basis for establishing and maintaining government secrets.
Consequently, there is little coordination among agencies on how
information is determined to be secret, little accountability among
classifying officials, and little Congressional oversight of the
government's secrecy activities.
The Commission also described how the secrecy system functions as a
form of government regulation, imposing significant costs on the
government and the private sector. It is time to begin reviewing these
costs and identify which secrets really need to be kept and which do
not. Like other areas of government regulation, we need to inject a
cost/benefit analysis into the process to be sure that those secrets we
do keep are worth the cost.
The Government Secrecy Act is an issue of good government reform that
needs consideration by Congress. I intend to work with Senator Glenn,
the Ranking Member of the Governmental Affairs Committee, to report an
amended S. 712 very soon. The United States needs a secrecy system that
does a better job of identifying those secrets which truly must be
kept, and which then can truly keep them secret.
Mr. GLENN. Mr. President, I concur that this is an important issue
that our Committee takes very seriously. We held a hearing on the
Commission's report last year, and I know that the Chairman has wanted
to return to this matter this year.
The question of establishing a statutory framework for classification
and declassification has long been a matter of debate. Our own
committee held extensive hearings on this subject in 1973 and 1974.
The current system is governed by Presidential executive order, and,
as the Majority Leader noted, this has led over time to inconsistencies
in policies and procedures. Some have questioned, however, whether
legislation is needed. I believe that it is proper for Congress to
legislate on this subject, while of course still respecting the
authority of the President in this area. This principle of shared
authority was recognized in the passage of the Atomic Energy Act, the
Espionage Act, and the National Security Act. If Congress acts now to
establish a statutory classification and declassification system, we
should take a similarly balanced approach.
Balance is also needed in our approach to considering the legislation
in the Senate. While S. 712 has been properly referred to our
committee, the Committee on Governmental Affairs, the bill raises
important issues of interest to the Select Committee on Intelligence,
the Armed Services Committee, and the Committee on Foreign Relations. I
am fully committed to working with each of these committees as the bill
moves forward.
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