Excerpts on Classification and Declassification
Congressional Record: November 5, 1999 (House)
Page H11630-H11643
CONFERENCE REPORT ON H.R. 1555
Mr. GOSS submitted the following conference report and statement on
the bill (H.R. 1555), to authorize appropriations for fiscal year 2000
for intelligence and intelligence-related activities of the United
States Government, the Community Management Account, and the Central
Intelligence Agency Retirement and Disability System, and for other
purposes:
Conference Report (H. Rept. 106-457)
The committee of conference on the disagreeing votes of the
two Houses on the amendment of the Senate to the bill (H.R.
1555), to authorize appropriations for fiscal year 2000 for
intelligence and intelligence-related activities of the
United States Government, the Community Management Account,
and the Central Intelligence Agency Retirement and Disability
System, and for other purposes, having met, after full and
free conference, have agreed to recommend and do recommend to
their respective Houses as follows:
That the House recede from its disagreement to the
amendment of the Senate and agree to the same with an
amendment as follows:
In lieu of the matter proposed to be inserted by the Senate
amendment, insert the following:
[...]
SEC. 304. PROTECTION OF IDENTITY OF RETIRED COVERT AGENTS.
(a) In General.--Section 606(4)(A) of the National Security
Act of 1947 (50 U.S.C. 426(4)(A)) is amended--
(1) by striking "an officer or employee" and inserting
"a present or retired officer or employee"; and
(2) by striking "a member" and inserting "a present or
retired member".
(b) Prison Sentences for Violations.--
(1) Imposition of consecutive sentences.--Section 601 of
the National Security Act of 1947 (50 U.S.C. 421) is amended
by adding at the end the following new subsection:
"(d) A term of imprisonment imposed under this section
shall be consecutive to any other sentence of
imprisonment.".
(2) Technical amendments.--Such section 601 is further
amended--
(A) in subsection (a), by striking "shall be fined not
more than $50,000" and inserting "shall be fined under
title 18, United States Code,";
(B) in subsection (b), by striking "shall be fined not
more than $25,000" and inserting "shall be fined under
title 18, United States Code,"; and
(C) in subsection (c), by striking "shall be fined not
more than $15,000" and inserting "shall be fined under
title 18, United States Code,".
[...]
SEC. 308. DECLASSIFICATION REVIEW OF INTELLIGENCE ESTIMATE ON
VIETNAM-ERA PRISONERS OF WAR AND MISSING IN
ACTION PERSONNEL AND CRITICAL ASSESSMENT OF
ESTIMATE.
(a) Declassification Review.--Subject to subsection (b),
the Director of Central Intelligence shall review for
declassification the following:
(1) National Intelligence Estimate 98-03 dated April 1998
and entitled "Vietnamese Intentions, Capabilities, and
Performance Concerning the POW/MIA Issue".
(2) The assessment dated November 1998 and entitled "A
Critical Assessment of National Intelligence Estimate 98-03
prepared by the United States Chairman of the Vietnam War
Working Group of the United States-Russia Joint Commission on
POWs and MIAs".
(b) Limitations.--The Director shall not declassify any
text contained in the estimate or assessment referred to in
subsection (a) which would--
(1) reveal intelligence sources and methods; or
(2) disclose by name the identity of a living foreign
individual who has cooperated with United States efforts to
account for missing personnel from the Vietnam era.
(c) Deadline.--The Director shall complete the
declassification review of the estimate and assessment under
subsection (a) not later than 30 days after the date of the
enactment of this Act.
SEC. 309. REPORT ON LEGAL STANDARDS APPLIED FOR ELECTRONIC
SURVEILLANCE.
(a) Report.--Not later than 60 days after the date of the
enactment of this Act, the Director of Central Intelligence,
the Director of the National Security Agency, and the
Attorney General shall jointly prepare, and the Director of
the National Security Agency shall submit to the appropriate
congressional committees, a report in classified and
unclassified form providing a detailed analysis of the legal
standards employed by elements of the intelligence community
in conducting signals intelligence activities, including
electronic surveillance.
(b) Matters Specifically Addressed.--The report shall
specifically include a statement of each of the following
legal standards:
(1) The legal standards for interception of communications
when such interception may result in the acquisition of
information from a communication to or from United States
persons.
(2) The legal standards for intentional targeting of the
communications to or from United States persons.
(3) The legal standards for receipt from non-United States
sources of information pertaining to communications to or
from United States persons.
(4) The legal standards for dissemination of information
acquired through the interception of the communications to or
from United States persons.
(c) Definitions.--As used in this section:
(1) The term "intelligence community" has the meaning
given that term under section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4)).
(2) The term "United States persons" has the meaning
given that term under section 101(i) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(i)).
(3) The term "appropriate congressional committees" means
the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives
and the Select Committee on Intelligence and the Committee on
the Judiciary of the Senate.
[...]
SEC. 311. REPORT ON ACTIVITIES OF THE CENTRAL INTELLIGENCE
AGENCY IN CHILE.
(a) In General.--By not later than 270 days after the date
of the enactment of this Act, the Director of Central
Intelligence shall submit to the appropriate congressional
committees a report describing all activities of officers,
covert agents, and employees of all elements in the
intelligence community with respect to the following events
in the Republic of Chile:
(1) The assassination of President Salvador Allende in
September 1973.
(2) The accession of General Augusto Pinochet to the
Presidency of the Republic of Chile.
(3) Violations of human rights committed by officers or
agents of former President Pinochet.
(b) Definition.--In this section, the term "appropriate
congressional committees" means the Permanent Select
Committee on Intelligence and the Committee on Appropriations
of the House of Representatives and the Select Committee on
Intelligence and the Committee on Appropriations of the
Senate.
[...]
SEC. 313. REAFFIRMATION OF LONGSTANDING PROHIBITION AGAINST
DRUG TRAFFICKING BY EMPLOYEES OF THE
INTELLIGENCE COMMUNITY.
(a) Finding.--Congress finds that longstanding statutes,
regulations, and policies of the United States prohibit
employees, agents, and assets of the elements of the
intelligence community, and of every other Federal department
and agency, from engaging in the illegal manufacture,
purchase, sale, transport, and distribution of drugs.
(b) Obligation of Employees of Intelligence Community.--Any
employee of the intelligence community having knowledge of a
fact or circumstance that reasonably indicates that an
employee, agent, or asset of an element of the intelligence
community is involved in any activity that violates a
statute, regulation, or policy described in subsection (a)
shall report such knowledge to an appropriate official.
(c) Intelligence Community Defined.--In this section, the
term "intelligence community" has the meaning given that
term in section 3(4) of the National Security Act of 1947 (50
U.S.C. 401a(4)).
SEC. 314. SENSE OF CONGRESS ON CLASSIFICATION AND
DECLASSIFICATION.
It is the sense of Congress that the systematic
declassification of records of permanent historical value is
in the public interest and that the management of
classification and declassification by Executive branch
agencies requires comprehensive reform and the dedication by
the Executive branch of additional resources.
[...]
SEC. 501. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL
IMAGERY AND MAPPING AGENCY.
(a) In General.--(1) Title I of the National Security Act
of 1947 (50 U.S.C. 401 et seq.) is amended by inserting after
section 105A (50 U.S.C. 403-5a) the following new section:
"protection of operational files of the national imagery and mapping
agency
"Sec. 105B. (a) Exemption of Certain Operational Files
From Search, Review, Publication, or Disclosure.--(1) The
Director of the National Imagery and Mapping Agency, with the
coordination of the Director of Central Intelligence, may
exempt operational files of the National Imagery and Mapping
Agency from the provisions of section 552 of title 5, United
States Code, which require publication, disclosure, search,
or review in connection therewith.
"(2)(A) Subject to subparagraph (B), for the purposes of
this section, the term 'operational files' means files of the
National Imagery and Mapping Agency (hereinafter in this
section referred to as 'NIMA') concerning the activities of
NIMA that before the establishment of NIMA were performed by
the National Photographic Interpretation Center of the
Central Intelligence Agency (NPIC), that document the means
by which foreign intelligence or counterintelligence is
collected through scientific and technical systems.
"(B) Files which are the sole repository of disseminated
intelligence are not operational files.
"(3) Notwithstanding paragraph (1), exempted operational
files shall continue to be subject to search and review for
information concerning--
"(A) United States citizens or aliens lawfully admitted
for permanent residence who have requested information on
themselves pursuant to the provisions of section 552 or 552a
of title 5, United States Code;
"(B) any special activity the existence of which is not
exempt from disclosure under the provisions of section 552 of
title 5, United States Code; or
"(C) the specific subject matter of an investigation by
any of the following for any impropriety, or violation of
law, Executive order, or Presidential directive, in the
conduct of an intelligence activity:
"(i) The Permanent Select Committee on Intelligence of the
House of Representatives.
"(ii) The Select Committee on Intelligence of the Senate.
"(iii) The Intelligence Oversight Board.
"(iv) The Department of Justice.
"(v) The Office of General Counsel of NIMA.
"(vi) The Office of the Director of NIMA.
"(4)(A) Files that are not exempted under paragraph (1)
which contain information derived or disseminated from
exempted operational files shall be subject to search and
review.
"(B) The inclusion of information from exempted
operational files in files that are not exempted under
paragraph (1) shall not affect the exemption under paragraph
(1) of the originating operational files from search, review,
publication, or disclosure.
"(C) Records from exempted operational files which have
been disseminated to and referenced in files that are not
exempted under paragraph (1) and which have been returned to
exempted operational files for sole retention shall be
subject to search and review.
"(5) The provisions of paragraph (1) may not be superseded
except by a provision of law which is enacted after the date
of the enactment of this section, and which specifically
cites and repeals or modifies its provisions.
"(6)(A) Except as provided in subparagraph (B), whenever
any person who has requested agency records under section 552
of title 5, United States Code, alleges that NIMA has
withheld records improperly because of failure to comply with
any provision of this section, judicial review shall be
available under the terms set forth in section 552(a)(4)(B)
of title 5, United States Code.
"(B) Judicial review shall not be available in the manner
provided for under subparagraph (A) as follows:
"(i) In any case in which information specifically
authorized under criteria established by an Executive Order
to be kept secret in the interests of national defense or
foreign relations is filed with, or produced for, the court
by NIMA, such information shall be examined ex parte, in
camera by the court.
"(ii) The court shall, to the fullest extent practicable,
determine the issues of fact based on sworn written
submissions of the parties.
"(iii) When a complainant alleges that requested records
are improperly withheld because of improper placement solely
in exempted operational files, the complainant shall support
such allegation with a sworn written submission based upon
personal knowledge or otherwise admissible evidence.
"(iv)(I) When a complainant alleges that requested records
were improperly withheld because of improper exemption of
operational files, NIMA shall meet its burden under section
552(a)(4)(B) of title 5, United States Code, by demonstrating
to the court by sworn written submission that exempted
operational files likely to contain responsible records
currently perform the functions set forth in paragraph (2).
"(II) The court may not order NIMA to review the content
of any exempted operational file or
[[Page H11634]]
files in order to make the demonstration required under
subclause (I), unless the complainant disputes NIMA's showing
with a sworn written submission based on personal knowledge
or otherwise admissible evidence.
"(v) In proceedings under clauses (iii) and (iv), the
parties may not obtain discovery pursuant to rules 26 through
36 of the Federal Rules of Civil Procedure, except that
requests for admissions may be made pursuant to rules 26 and
36.
"(vi) If the court finds under this paragraph that NIMA
has improperly withheld requested records because of failure
to comply with any provision of this subsection, the court
shall order NIMA to search and review the appropriate
exempted operational file or files for the requested records
and make such records, or portions thereof, available in
accordance with the provisions of section 552 of title 5,
United States Code, and such order shall be the exclusive
remedy for failure to comply with this subsection.
"(vii) If at any time following the filing of a complaint
pursuant to this paragraph NIMA agrees to search the
appropriate exempted operational file or files for the
requested records, the court shall dismiss the claim based
upon such complaint.
"(viii) Any information filed with, or produced for the
court pursuant to clauses (i) and (iv) shall be coordinated
with the Director of Central Intelligence prior to submission
to the court.
"(b) Decennial Review of Exempted Operational Files.--(1)
Not less than once every ten years, the Director of the
National Imagery and Mapping Agency and the Director of
Central Intelligence shall review the exemptions in force
under subsection (a)(1) to determine whether such exemptions
may be removed from the category of exempted files or any
portion thereof. The Director of Central Intelligence must
approve any determination to remove such exemptions.
"(2) The review required by paragraph (1) shall include
consideration of the historical value or other public
interest in the subject matter of the particular category of
files or portions thereof and the potential for declassifying
a significant part of the information contained therein.
"(3) A complainant that alleges that NIMA has improperly
withheld records because of failure to comply with this
subsection may seek judicial review in the district court of
the United States of the district in which any of the parties
reside, or in the District of Columbia. In such a proceeding,
the court's review shall be limited to determining the
following:
"(A) Whether NIMA has conducted the review required by
paragraph (1) before the expiration of the ten-year period
beginning on the date of the enactment of this section or
before the expiration of the 10-year period beginning on the
date of the most recent review.
"(B) Whether NIMA, in fact, considered the criteria set
forth in paragraph (2) in conducting the required review.".
(2) The table of contents contained in the first section of
such Act is amended by inserting after the item relating to
section 105A the following new item:
"Sec. 105B. Protection of operational files of the National Imagery
and Mapping Agency.".
(b) Treatment of Certain Transferred Records.--Any record
transferred to the National Imagery and Mapping Agency from
exempted operational files of the Central Intelligence Agency
covered by section 701(a) of the National Security Act of
1947 (50 U.S.C. 431(a)) shall be placed in the operational
files of the National Imagery and Mapping Agency that are
established pursuant to section 105B of the National Security
Act of 1947, as added by subsection (a).
[...]
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE
The managers on the part of the Senate and the House at the
conference on the disagreeing votes of the two Houses on the
amendment of the Senate to the bill (H.R. 1555) to authorize
appropriations for fiscal year 2000 for intelligence and the
intelligence-related activities of the United States
Government, the Community Management Account, and the Central
Intelligence Agency Retirement and Disability System, and for
other purposes, submit the following joint statement to the
Senate and
[[Page H11639]]
the House in explanation of the effect of the action agreed
upon by the managers and recommended in the accompanying
conference report:
[...]
sec. 104. intelligence community management account
Section 104 of the conference report authorizes
appropriations for the Community Management Account for the
Director of Central Intelligence and sets the personnel end-
strength for the Intelligence Community Management Staff for
fiscal year 2000.
Subsection (a) authorizes appropriations of $170,672,000
for fiscal year 2000 for the activities of the Community
Management Account (CMA) of the Director of Central
Intelligence.
The House bill and the Senate amendment were nearly
identical.
The Senate amendment, however, contained a provision
earmarking funds from the CMA for the Information Security
Oversight Office (ISOO). The House bill did not include a
similar provision. The House recedes to the Senate position
with a modification. The managers have agreed to delete the
provision earmarking Community Management funds for the ISOO.
The managers agree that authorizing funds from the CMA for
the ISOO is an inappropriate allocation of intelligence
community funds.
[...]
sec. 304. protection of identity of retired covert agents
The House bill contained a similar provision. The Senate
amendment did not. The Senate recedes to the House with a
modification replacing the mandatory minimum sentencing
provision in the House bill with a provision specifying that
terms of imprisonment imposed under the section shall be
served consecutively to any other sentence of imprisonment.
[...]
Sec. 308. declassification review of intelligence estimate on vietnam-
era prisoners of war and missing in action personnel and critical
assessment of estimate
The Senate amendment contained a similar provision. the
House bill did not. the House recedes to the Senate position.
sec. 309. report on legal standards applied for electronic surveillance
The House bill and Senate amendment contained similar
provisions. The Senate recedes to the House provision with a
modification.
[...]
sec. 311. report on activities of the central intelligence agency in
chile
Section 311 requires the Director of Central Intelligence
to submit a report to the appropriate committees of Congress
no later than nine months after this Act is enacted
describing all activities of officers, covert agents, and
employees of all elements in the intelligence community with
respect to the assassination of President Salvador Allende in
September 1973; the accession of General Augusto Pinochet to
the Presidency of the Republic of Chile; and, violations of
human rights committed by officers or agents of former
President Pinochet.
The conferees note that the National Security Council on
February 1, 1999, directed the Departments of State, Justice,
and Defense; the Central Intelligence Agency; and the
National Archives to compile and review for public release
all documents that shed light on human rights abuses,
terrorism, and other acts of political violence during and
prior to the Pinochet era in Chile. In addition, the
conferees note that the Department of Justice is conducting a
search for documents pertaining to the requests of the
Spanish court investigating the abuses of the Pinochet
regime. The managers expect the appropriate committees of
Congress, as set forth in this section, to be given access to
the documents responsive to these two searches, whether
classified or publicly released.
Section 311 is similar to Section 306(a) of the House bill
but provides additional time for the submission of the
report.
[...]
sec. 313. reaffirmation of longstanding prohibition against drug
trafficking by employees of the intelligence community
The House bill contained a similar provision. The Senate
amendment did not. The Senate recedes to the House position
with a modification upon the insistence of the Senate.
sec. 314. sense of congress on classification and declassification
The Senate amendment contained a similar provision. The
House bill did not. The House recedes to the Senate position.
[...]
sec. 501. protection of operational files of the national imagery and
mapping agency
The House bill contained a similar provision. The Senate
amendment did not. The Senate recedes to the House position,
with a modification making this amendment to title 50, United
States Code, rather than in title 10, United States Code.
[...]