Congressional Record: March 9, 1998 (Senate)
Page S1561-S1564
CLASSIFIED AND RELATED INFORMATION DISCLOSURE ACT
The PRESIDING OFFICER. Under the previous order, the Senate will now
proceed to the consideration of S. 1668, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 1668) to encourage the disclosure to Congress of
certain classified and related information.
The Senate proceeded to consider the bill.
The PRESIDING OFFICER. There will now be 20 minutes of debate on the
bill, equally divided, with no amendments or motions in order.
The Senator from Alabama is recognized.
Mr. SHELBY. Mr. President, I rise today to urge my colleagues to
support the passage of S. 1668, the Disclosure to Congress Act of 1998.
This legislation directs the President to inform employees of the
intelligence community that they may disclose information, including
classified information, to an appropriate oversight committee of
Congress when that information is evidence of misconduct, fraud, or
gross mismanagement.
The committee is hopeful that this legislation will also encourage
employees within the intelligence community to bring such information
to an appropriate committee of Congress rather than unlawfully
disclosing such information to the media, as happens from time to time.
It is imperative that individuals with sensitive or classified
information about misconduct within the executive branch have a "safe
harbor" for disclosure where they know the information will be
properly safeguarded and thoroughly investigated.
Further, employees within the intelligence community must know that
they may seek shelter in that "safe harbor" without fear of
retribution.
It is not generally known that the Whistle Blower Protection Act does
not cover employees of the agencies within the intelligence community.
The whistle blower statute also expressly proscribes the disclosure
of information that is specifically required by Executive order to be
kept secret in the interest of national defense or the conduct of
foreign affairs.
In other words, classified information is not covered by the current
whistle blower statute.
Therefore, employees within the intelligence community are not
protected from adverse personnel actions if they choose to disclose
such information to Congress.
In fact, an employee who discloses classified information to Congress
without prior approval is specifically subject to sanctions which may
include reprimand, termination of a security clearance, suspension
without pay, or removal.
Last year, the Senate Select Committee on Intelligence reported the
Intelligence Authorization Act for Fiscal Year 1998 which included
section 306, a provision with language similar to the bill before you.
Section 306, however, was much broader than the language in this bill
because it directed the President to inform all executive branch
employees that it would not be contrary to law, regulation, executive
order, or public policy to disclose certain information, including
classified information, to an appropriate committee or their own Member
of Congress.
The Senate passed that bill by a vote of 98 to 1.
Shortly after the Senate vote, the administration issued a Statement
of Administration Policy claiming that section 306 was unconstitutional
and that if it remained in the bill, in its present form, senior
advisers would recommend that the President veto the bill.
Last year, in conference, members of the House Permanent Select
Committee on Intelligence also expressed concern over the
constitutional implications of section 306.
Our House colleagues were also mindful of the administration's veto
threat as expressed in the Statement of Administration Policy.
In response to their concerns, the Senate offered an amendment that
significantly narrowed the scope of the provision to cover only
employees of agencies within the intelligence community, as does this
bill.
The amendment offered in conference further narrowed the provision by
allowing disclosure only to committees with primary jurisdiction over
the agency involved.
In deference to our colleagues' concerns, however, our committee
agreed to amend the provision to express a sense of the Congress that
the Congress and executive branch have equal standing to receive this
type of information.
In conference, members of both committees committed to hold hearings
in the second session of the 105th Congress with the intent to fully
examine the constitutional implications to such legislation and to
pursue appropriate legislative remedy.
Our committee fulfilled our obligation by holding hearings on
February 4 and 11.
[[Page S1562]]
The committee heard from constitutional scholars and legal experts on
both sides of the issue.
An administration representative argued that section 306 and any
similar language represents an unconstitutional infringement on the
President's authority as Commander in Chief and Chief Executive.
The administration asserted the following:
The President as Commander in Chief, Chief Executive, and
sole organ of the Nation in its external relations has
ultimate and unimpeded authority over the collection,
retention, and dissemination of intelligence and other
national security information.
Therefore, any congressional enactment that may be
interpreted to divest the President of his ultimate control
over national security information is an unconstitutional
usurpation of the exclusive authority of the Executive.
Finally, the Administration argues that the Senate's
language vests lower-ranking personnel in the Executive
Branch with a "right" to furnish such information to a
Member of Congress without prior official authorization from
the President or his designee. Section 306 and any similar
provision is, therefore, unconstitutional.
The committee also heard from constitutional scholars that argued
that the President's authority in this area is not exclusive.
Hence, Congress also has the authority to regulate the collection,
retention, and dissemination of national security information.
Their argument was as follows:
A claim of exclusive authority must be substantiated by an
explicit textual grant of such authority by the Constitution.
There is no express constitutional language regarding the
regulation of national security information as it pertains to
the President.
Therefore, the President's authority to regulate national
security information is an implied authority flowing from his
responsibilities as Commander in Chief and Chief Executive.
As the regulation of national security information is
implicit in the command authority of the President, if is
equally implicit in the broad array of national security
authorities vested in the Congress by the Constitution. In
fact, Congress has legislated extensively over a long period
of time to require the President to provide such information
to Congress.
Therefore, Congress may legislate in this area because the
Executive and Legislative Branches share constitutional
authority to regulate national security information.
This legislation is also constitutional because it does not
prevent the President from accomplishing his constitutionally
assigned functions and any intrusion upon his authority is
justified by an overriding need to promote objectives within
the constitutional authority of Congress.
The committee found the latter argument to be persuasive and
determined that the Administration's intransigence on this issue
compelled the committee to act.
The bill before you is a modified version of section 306, but still
directs the President to inform employees and contractors of the
covered agencies that it is not prohibited by law, executive order, or
regulation to disclose to the appropriate committee, information that
the employee reasonably believes to provide direct and specific
evidence of, one, a violation of any law, rule, or regulation; two, a
false statement to Congress on an issue of material fact; three, gross
mismanagement, a gross waste of funds, a flagrant abuse of authority,
or a substantial and specific danger to public health or safety.
This bill is intended to ensure that members receive information only
in their capacity as a member of the committee concerned.
The committee fully appreciates the need to protect national security
information, particularly information that might reveal sensitive
intelligence sources and methods.
Therefore, it is critical that classified information received by a
member of one of the appropriate committees be protected in accordance
with that particular committee's rules.
The Intelligence Committee, for example, must follow a very strict
procedure before any classified information could be disclosed to the
public.
Accordingly, a member is not free to accept classified information as
a member of a committee unrestrained by such rules or to withhold
knowledge of the information from the committee's leadership.
When individual Members are entrusted with classified information,
they may not pick and choose what role they wish to play in an attempt
to circumvent their responsibility to safeguard our nation's secrets.
We cannot disregard our obligations, under Senate rules, in order to
serve our own political interests.
If a Senator is not a member of one of the applicable committees and
is approached by an employee from the intelligence community, it is the
hope of the Intelligence Committee that the member would direct the
employee to the appropriate committee so that the employee would enjoy
the full protection of this legislation.
The various national security committees enjoy a long history of
trust with the executive branch and this bill is intended to prevent a
member or members from inadvertently or intentionally spoiling that
record.
This bill further directs the President to inform such employees that
members of the appropriate committees have a "need to know" and are
authorized to receive such information.
This language is consistent with the argument propounded by the
administration in a brief that it filed in the Supreme Court in 1989,
namely that
. . . the president has uniformly limited access to
classified information to persons who have a need to know the
particular information, such as a congressional committee
having specific jurisdiction over the subject matter.
There is no question that the appropriate committees need this type
of information to effectively perform their oversight responsibilities
and the administration seems to agree that these committees have a
"need to know." Our only disagreement is over the means by which this
type of information is brought to the attention of Congress.
In accordance with Executive Order No. 12,958, classified information
must remain under the control of the originating agency and it may not
be disseminated without proper authorization.
Consequently, an executive branch employee may not disclose
classified information to Congress without prior approval. In fact,
employees are advised that the agency will provide "access as is
necessary for Congress to perform its legislative functions. . . ."
In other words, an executive agency will decide what Members of
Congress may need to know to perform their constitutional oversight
functions.
We believe that Members of Congress are best positioned to decide
what they need to know.
If an employee must secure prior authorization before they can bring
evidence of wrongdoing to an appropriate committee, we may never get
the opportunity to make that assessment.
Therefore, this legislation is critical if we are to effectively
discharge our constitutional obligations.
I urge my colleagues to support this bill as they did last year and
send a clear message to the President that the United States Congress
will not be subject to the whims of a Chief Executive that may wish to
withhold evidence of wrongdoing in the name of national security.
Mr. President, before I yield the floor, I send to the desk a
Congressional Budget Office cost estimate for S. 1668, and I ask
unanimous consent that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1668
A Bill to Encourage the Disclosure to Congress of Certain Classified
and Related Information--As Reported by the Senate Select Committee on
Intelligence on February 23, 1998
The bill would require the President to inform certain
federal employees and contract employees that they may
disclose classified and unclassified information to
Congressional oversight committees if they believe the
information provides direct and specific evidence of
wrongdoing. CBO estimates that the costs of implementing S.
1668 would not be significant because the number of employees
covered by the bill would be small and the cost associated
with each notice would be minimal. Because the legislation
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act of
1995, and would not affect the budget of state, local, or
tribal governments.
The CBO staff contact for this estimate is Dawn Sauter, who
can be reached at 226-2840. This estimate was approved by
Robert A. Sunshine, Deputy Assistant Director for Budget
Analysis.
Mr. KERREY addressed the Chair.
[[Page S1563]]
The PRESIDING OFFICER. The Senator from Nebraska is recognized.
Mr. KERREY. Mr. President, I rise in strong support of S. 1668, a
bill to require the President to inform Executive Branch employees it
is legal for them to bring information to Congress regarding
wrongdoing, even if the information has been classified by an Executive
Branch official.
Some of my colleagues may be surprised that the Intelligence
Committee, which reported this bill after long discussion and study,
finds such legislation necessary. Members are aware that the principle
of a government employee's right to directly inform Congress has been
in statute for eighty six years, and was reinforced in this decade by
the Whistleblower Protection Act. What may be less well known is that
the Whistleblower Protection Act specifically exempts the principal
agencies of the Intelligence Community from the requirements of that
law. In addition, successive administrations have held that where
classified information of wrongdoing is concerned, Executive Branch
officials will decide what portion of the information will be shared
with Congress, and how, when, and with whom in Congress it will be
shared. The Administration believes the control of classified
information lies solely with the President and his designees. They base
this belief on the President's role as Commander in Chief.
In current practice, an employee of the Executive Branch with
classified information about wrongdoing has the option of informing his
or her superior, or the inspector general of the department or agency.
The employee also has the option of making a report to the Attorney
General. In my view, this is insufficient. Members, especially those
who have served on the Armed Services Committee or the Intelligence
Committee, can visualize cases in which the classified information of
wrongdoing is so sensitive that an employee will fear to take any of
the avenues now available. He or she may fear for their career if they
inform their boss or their Inspector General prior to informing
Congress. In some rare circumstances they might even fear for their
safety. Yet today such employees have no other legal recourse.
The ability of government employees to bring information to Congress
should be our first concern in this matter. But we should also be
concerned about the rights of Congress and the ability of Congress to
do the job the Constitution requires. Congress also has important
national security responsibilities.
Congress, not the President, raises armies and maintains navies.
Congress, not the President, calls out the militia. Congress, not the
President, declares war. Congress therefore has the right to national
security information, and in fact Congressional committees in the
national security and foreign policy fields have been successfully
working with and storing this information for many years. In addition,
Congress' annual responsibility to authorize and appropriate funds for
national security and foreign policy purposes, and its continuing
responsibility to oversee how those funds are spent, gives Congress a
need to know which justifies its access to information. For these
reasons, the Administration's arguments for their exclusive control
over classified information ring hollow. I should add that according to
CIA Director Tenet, Congress does a better job keeping the secrets
entrusted to it than does the Executive Branch. So an argument that
Congress should not be trusted with sensitive information is baseless.
Mr. President, I recognize the Administration argument is based on a
requirement, as they see it, to defend Presidential prerogatives. In
fact, the Clinton Administration has been more open in informing
Congress on intelligence matters, including instances of wrongdoing,
than any of its predecessors. Some Administration of the future might
classify a report to deny Congress the facts, but not this one. So my
support for this legislation is not based on concern about a particular
Administration. It is based on my concern for the ability of government
employees to inform Congress, and on the ability of Congress to play
its role in keeping America safe. Given the responsibilities of
Congress and its record in keeping classified information secure, there
is no reason why whistleblower protection statutes should not also
apply to classified information. In voting for this bill, my colleagues
are voting for their own right to do their job.
Mr. President, I yield such time as is necessary to the Senator from
New Jersey.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. TORRICELLI. Mr. President, I thank the Senator from Nebraska for
yielding.
Mr. President, there is nothing more fundamental to a democratic
government than the oversight of executive responsibility by the
Congress. It is, indeed, the essence of an accountability of power that
this Congress has access to information and the people who hold it.
That exercise of congressional power requires the truthful testimony of
personnel in the executive branch of the Government. In no area is this
more important than in issues of national security, because,
ultimately, it is this Congress that holds the power of war and peace
and the responsibility to raise funds for the national defense. But in
recent decades, the intelligence agencies of this Government have
become the exception in this accountability of power--an exception by
statute in the Whistle Blower Protection Act and, perhaps more
fundamentally, by the culture of governance in the Government itself.
Tragically, one of the best examples was a former assistant in the
Latin American Bureau of the State Department, Richard Nuccio, who came
to me, as a Member of the House of Representatives, to report what he
believed to be illegal activity. At the time, I served as a member of
the Intelligence Committee of the House of Representatives. What Mr.
Nuccio imparted to me was criminal conduct. Information that, by
statute, was to be reported to the Intelligence Committee had been
omitted. In the months and years that followed, the President of the
United States expressed outrage. The Central Intelligence Agency
conducted an investigation and the rules were changed. Mr. Nuccio paid
a price with his intelligence clearance, and ultimately with his
career. It appeared that no real lesson had been learned at all.
Last year Senator Shelby and Senator Kerrey provided real protection
to executive employees if they come to this Congress with the truth. I
have rarely been prouder of two Members of this institution, nor more
disappointed in the President of the United States. He threatened to
veto the change.
Mr. President, I rise because I am extremely grateful to Senator
Shelby and Senator Kerrey for their leadership. Indeed, they were
joined by all 19 members of the committee. As a result, I believe that
the intelligence community not only will not be weakened, but it will
be strengthened. The best protection against abuse of their authority
or, indeed, violations of the law, is the knowledge that Federal
employees will be protected if they come to this Congress to report
such activities.
The occurrence of illegal acts will not be concealed by classifying
them or by carefully omitting them in a notification requirement of
this Congress.
The best means I know is assuring the intelligence community that it
retains the confidence of this Congress and our people.
This legislation is a real contribution to this Congress. Mostly it
is a real contribution to the accountability of power that is so
important in our democratic system.
Mr. President, I yield the floor.
Mr. SHELBY. Mr. President, how much time remains on our side?
The PRESIDING OFFICER. The Senator from Alabama has 3 minutes 30
seconds.
Mr. SHELBY. How much time remains for the other side?
The PRESIDING OFFICER. The Senator from Nebraska has 1 minute 8
seconds.
Mr. SHELBY. Mr. President, I yield our time, and I understand the
Senator from Nebraska does also.
Mr. KERREY. Mr. President, I ask unanimous consent to yield the
remainder of my time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SHELBY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
[[Page S1564]]
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, Shall the bill pass? On this question, the yeas and nays
have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the role.
Mr. NICKLES. I announce that the Senator from Indiana (Mr. Coats) is
necessarily absent.
Mr. FORD. I announce that the Senator from California (Mrs. Boxer),
the Senator from Illinois (Mr. Durbin), the Senator from Ohio (Mr.
Glenn), and the Senator from Oregon (Mr. Wyden) are necessarily absent.
I further announce that the Senator from Vermont (Mr. Leahy) is
absent on official business.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 93, nays 1, as follows:
[Rollcall Vote No. 24 Leg.]
YEAS--93
Abraham
Akaka
Allard
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Breaux
Brownback
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Cochran
Collins
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Domenici
Dorgan
Enzi
Faircloth
Feingold
Feinstein
Ford
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Warner
Wellstone
NAYS--1
Cleland
NOT VOTING--6
Boxer
Coats
Durbin
Glenn
Leahy
Wyden
The bill (S. 1668) was passed, as follows:
S. 1668
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ENCOURAGEMENT OF DISCLOSURE OF CERTAIN INFORMATION
TO CONGRESS.
(a) Encouragement.--
(1) In general.--Not later than 30 days after the date of
enactment of this Act, the President shall take appropriate
actions to inform the employees of the covered agencies, and
employees of contractors carrying out activities under
classified contracts with covered agencies, that--
(A) except as provided in paragraph (4), the disclosure of
information described in paragraph (2) to the individuals
referred to in paragraph (3) is not prohibited by law,
executive order, or regulation or otherwise contrary to
public policy;
(B) the individuals referred to in paragraph (3) are
presumed to have a need to know and to be authorized to
receive such information; and
(C) the individuals referred to in paragraph (3) may
receive information so disclosed only in their capacity as
members of the committees concerned.
(2) Covered information.--Paragraph (1) applies to
information, including classified information, that an
employee reasonably believes to provide direct and specific
evidence of--
(A) a violation of any law, rule, or regulation;
(B) a false statement to Congress on an issue of material
fact; or
(C) gross mismanagement, a gross waste of funds, a flagrant
abuse of authority, or a substantial and specific danger to
public health or safety.
(3) Covered individuals.--The individuals to whom
information described in paragraph (2) may be disclosed are
the members of a committee of Congress having as its primary
responsibility the oversight of a department, agency, or
element of the Federal Government to which such information
relates.
(4) Scope.--Paragraph (1)(A) does not apply to information
otherwise described in paragraph (2) if the disclosure of the
information is prohibited by Rule 6(e) of the Federal Rules
of Criminal Procedure.
(b) Report.--Not later than 60 days after the date of
enactment of this Act, the President shall submit to Congress
a report on the actions taken under subsection (a).
(c) Construction With Other Reporting Requirements.--
Nothing in this section may be construed to modify, alter, or
otherwise affect any reporting requirement relating to
intelligence activities that arises under the National
Security Act of 1947 (50 U.S.C. 401 et seq.) or any other
provision of law.
(d) Covered Agencies Defined.--In this section, the term
"covered agencies" means the following:
(1) The Central Intelligence Agency.
(2) The Defense Intelligence Agency.
(3) The National Imagery and Mapping Agency.
(4) The National Security Agency.
(5) The Federal Bureau of Investigation.
(6) Any other Executive agency, or element or unit thereof,
determined by the President under section 2302(a)(2)(C)(ii)
of title 5, United States Code, to have as its principal
function the conduct of foreign intelligence or
counterintelligence activities.
Mr. SHELBY. Mr. President, I move to reconsider the vote.
Mr. LOTT. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DOMENICI addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Is it in order for me to proceed for 2 minutes as in
morning business?
The PRESIDING OFFICER (Mrs. HUTCHISON). Without objection, it is so
ordered.
____________________