Congressional Record
January 19, 1999
______
By Mr. MOYNIHAN (for himself, Mr. Helms, Mr. Lott, Mr. Daschle,
Mr. Thompson, Ms. Collins, and Mr. Schumer):
S. 22. A bill to provide for a system to classify information in the
interests of national security and a system to declassify information,
and for other purposes; to the Committee on Governmental Affairs.
the government secrecy reform act
Mr. MOYNIHAN. Mr. President, I rise to introduce the Government
Secrecy Reform Act. I would like to begin by thanking my cosponsors,
Senators Helms, Lott, Daschle, Thompson, Collins, and Schumer. The
legislation that we introduce today is intended to implement the core
recommendation of the Commission on Protecting and Reducing Government
Secrecy: a statute establishing the principles to govern the
classification and declassification of information.
The Federal government has a legitimate interest in maintaining
secrets in order to fulfill its Constitutional charge to "provide for
the common defense." At the same time, this interest must be balanced
by the public's right to be informed of government activities.
The Commission on Protecting and Reducing Government Secrecy, which I
chaired, found a secrecy system out of balance: one which has lost the
confidence of many inside and outside the Government. Consequently,
information needing protection does not always receive it, while
innocuous information is classified and remains classified. The
Commission found in its 1997 report that "[t]he best way to ensure
that secrecy is respected, and that the most important secrets remain
secret, is for secrecy to be returned to its limited but necessary
role. Secrets can be protected more effectively if secrecy is reduced
overall."
Begin with the concept that secrecy should be understood as a form of
government regulation. This was an insight of the Commission, building
on the work of the great German sociologist Max Weber. The instinct of
the bureaucracy, Weber wrote, was to "increase the superiority of the
professionally informed by keeping their knowledge and intentions
secret." The concept of the 'official secret' "is the specific
invention of bureaucracy, and nothing is so fanatically defended by the
bureaucracy as this attitude."
We traditionally think of regulation as a means to govern how
citizens are to behave. Whereas public regulation involves what
citizens may do, secrecy concerns what citizens may know. And the
citizen does not know what may not be known. As our Commission stated:
"Americans are familiar with the tendency to overregulate in other
areas. What is different with secrecy is that the public cannot know
the extent or the content of the regulation."
Thus, secrecy is the ultimate mode of regulation; the citizen does
not even know that he or she is being regulated! It is a parallel
regulatory regime with a far greater potential for damage if it
malfunctions. In our democracy, where the free exchange of ideas is so
essential, it can be suffocating.
To reform this system, the Commission recommended legislation be
adopted. Senator Jesse Helms and I, and Representatives Larry Combest
and Lee Hamilton (all Commissioners), introduced the Government Secrecy
Act on May 7, 1997. Our core objective is to ensure that secrecy
proceed according to law. Since the Truman Administration,
classification and declassification have been governed by a series of
executive orders but not one has created a stable and reliable system
to ensure we protect what truly needs protecting and nothing more. The
system lacks the discipline of a legal framework to define and enforce
the proper uses of secrecy. The proposed statute can help ensure that
the present regulatory regime will not simply continue to flourish
without any restraint and without meaningful oversight and
accountability.
The Senate Governmental Affairs Committee, Chaired by Senator
Thompson of Tennessee, considered the bill is the 105th Congress and
reported it unanimously. In its report to accompany the bill, the
Committee had this important insight:
Our liberties depend on the balanced structure created by
James Madison and the other framers of the Constitution. The
national security information system has not had a clear
legislative foundation, but . . . has been developed through
a series of executive orders. It is time to bring this
executive monopoly over the issue to an end, and to begin to
engage in the same sort of dialogue between Congress and the
executive that characterizes the development of government
policy in all other means.
As the Cold War gathered, this "executive monopoly" as the
Governmental Affairs Committee has termed it, was spawned. The United
States had to organize itself to deal with aggression from the Soviet
Union. American society in peacetime began to experience wartime
regulation. The awful dilemma was that in order to preserve an open
society, the U.S. government took measures that in significant ways
closed it down. The culture of secrecy that evolved was intended as a
defense against two antagonists: the enemy abroad and the enemy within.
Edward Shils chronicled the perils of this growing secrecy system in
his 1956 work, The Torment of Secrecy. He said of this era:
The American visage began to cloud over. Secrets were to
become our chief reliance just when it was becoming more and
more evident that the Soviet Union had long maintained an
active apparatus for espionage in the United States. For a
country which had never previously thought of itself as an
object of systematic espionage by foreign powers, it was
unsettling.
The larger society, Shils continued, was "facing an unprecedented
threat to its continuance." In such circumstances, "the phantasies of
apocalyptic visionaries now claimed the respectability of being a
reasonable interpretation of the real situation."
Shils was writing, as he explained in his Foreword, "after nearly a
decade of degrading agitation and numerous unnecessary and unworthy
actions . . ." Today, by contrast, the public and its representatives
have few of the concerns of ideological "infiltration" that dominated
our attention and our domestic politics during the decade preceding
Shils' book.
Indeed, if there is such a thing as a "typical" case of espionage,
it involves an employee well into mid-career who sells national
security secrets out of greed, not because of any ideologically-based
motivation.
Moreover, today it is the United States government that increasingly
finds itself the object of what Shils four decades ago termed the
"phantasies of apocalyptic visionaries."
Conspiracy theories have been with us since the birth of the
Republic. The best-known and most notorious is, of course, the
unwillingness on the part of the vast majority of the American public
to accept that President Kennedy was assassinated in 1963 by Lee Harvey
Oswald acting alone. A poll taken in 1966, two years after release of
the Warren Commission report concluding that Oswald had acted alone,
found that 36 percent of respondents accepted this finding, while 50
percent believed others had been involved in a conspiracy to kill the
President. By 1978 only 18 percent responded that they believed the
assassination had been the act of one man; fully 75 percent believed
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there had been a broader plot. The numbers have remained relatively
steady since; a 1993 poll also found that three-quarters of those
surveyed believed (consistent with the film JFK, released that year)
that there had been a conspiracy.
It so happens that I was in the White House at the hour of the
President's death (I was an assistant labor secretary at the time). I
feared what would become of Oswald if he were not protected and I
pleaded that we must get custody of him. But no one seemed to be able
to hear. Presently Oswald was killed, significantly complicating
matters.
I did not think there had been a conspiracy to kill the president,
but I was convinced that the American people would sooner or later come
to believe that there had been one unless we investigated the event
with exactly that presumption in mind. The Warren Commission report and
the other subsequent investigations, with their nearly universal
reliance on secrecy, did not dispel any such fantasies.
The Assassination Records Review Board has now completed its
Congressionally mandated review and release of documents related to
President Kennedy's assassination. It has assembled at the National
Archives a thorough collection of documents and evidence that was
previously secret and scattered about the government. The Review Board
found that while the public has continued to search for answers over
the past thirty-five years:
[T]he official record on the assassination of President
Kennedy remained shrouded in secrecy and mystery.
The suspicions created by government secrecy eroded
confidence in the truthfulness of federal agencies in general
and damaged their credibility.
Credibility eroded needlessly, as most of the documents which the Board
reviewed were declassified. In conducting this document-by-document
review of classified information, the Board reports that "the federal
government needlessly and wastefully classified and then withheld from
public access countless important records that did not require such
treatment."
With the Government Secrecy Reform Act, we are not proposing putting
an end to government secrecy. Far from it. It is at times terribly
necessary and used for the most legitimate reasons--ranging from
military operations to diplomatic endeavors. Indeed, much of our
Commission's report is devoted to explaining the varied circumstances
in which secrecy is most essential. Yet, the bureaucratic attachment to
secrecy has become so warped that, in the words of Kermit Hall, a
member of the Assassination Records Review Board, it has transformed
into "a deeply ingrained commitment to secrecy as a form of
partriotism." From this perspective, it is easy to see how secrecy
became the norm.
Secrecy need not remain the only norm--particularly when one
considers that the current badly overextended system frequently fails
to protect its most important secrets adequately. We must develop what
might be termed a competing "culture of openness"--fully consistent
with our interests in protecting national security. A culture in which
power and authority are no longer derived primarily from one's ability
to withhold information from others in government and the public at
large.
This is our purpose in introducing the Government Secrecy Reform Act.
I thank those who have agreed to cosponsor the bill and ask my
colleagues to lend it the attention it deserves.
I ask unanimous consent that the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 22
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 "Government Secrecy Reform
Act of 1999".
SEC. 2. CLASSIFICATION AND DECLASSIFICATION OF INFORMATION.
(a) In General.--The President may, in accordance with the
provisions of this Act, protect from unauthorized disclosure
any information owned by, produced by or for, or under the
control of the executive branch when there is a demonstrable
need to do so in order to protect the national security of
the United States.
(b) Establishment of Standards and Procedures for
Classification and Declassification.--
(1) Governmentwide procedures.--
(A) Classification.--The President shall, to the extent
necessary, establish categories of information that may be
classified and procedures for classifying information under
subsection (a).
(B) Declassification.--At the same time the President
establishes categories and procedures under subparagraph (A),
the President shall establish procedures for declassifying
information that was previously classified.
(2) Notice and comment.--
(A) Notice.--The President shall publish in the Federal
Register notice regarding the categories and procedures
proposed to be established under paragraph (1).
(B) Comment.--The President shall provide an opportunity
for interested persons to submit comments on the categories
and procedures covered by subparagraph (A).
(C) Deadline.--The President shall complete the
establishment of categories and procedures under paragraph
(1) not later than 60 days after publishing notice in the
Federal Register under subparagraph (A). Upon completion of
the establishment of such categories and procedures, the
President shall publish in the Federal Register notice
regarding such categories and procedures.
(3) Modification.--In the event the President determines to
modify any categories or procedures established under
paragraph (1), subparagraphs (A) and (B) of paragraph (2)
shall apply to such modification.
(4) Agency standards and procedures.--
(A) In general.--The head of each agency shall establish
standards and procedures to permit such agency to classify
and declassify information created by such agency in
accordance with the categories and procedures established by
the President under this section and otherwise to carry out
the provisions of this Act. Such standards and procedures
shall include mechanisms to minimize the risk of inadvertent
or inappropriate declassification of previously classified
information (including information classified by other
agencies).
(B) Guidance.--
(i) In general.--The President shall require the head of
each agency with original classification authority to produce
written guidance on the classification and declassification
of information in order to improve the classification and
declassification of information by such agency and the
derivative classification of information and declassification
of derivatively classified information by such agency and
other agencies. Such guidance may be treated as classified
information under this Act.
(ii) Declassification period for certain information.--
(I) In general.--In producing written guidance under clause
(i), the head of an agency may specify types and categories
of information that may remain classified for up to 25 years
after the date of original classification.
(II) Approval required.--The specification of a type or
category of information under subclause (I) shall be
effective only with the approval of the Director of the
Office of National Classification and Declassification
Oversight.
(C) Deadline.--Each agency head shall establish standards
and procedures under subparagraph (A) and produce written
guidance under subparagraph (B) not later than 60 days after
the date on which the President publishes notice under
paragraph (2)(C) of the categories and standards established
by the President under paragraph (1).
(D) Publication.--Each agency head shall publish in the
Federal Register the standards and procedures established by
such agency head under subparagraph (A).
(c) Standard for Classification and Declassification
Decisions.--
(1) In general.--Subject to paragraph (2), information may
be classified under this Act, and classified information
under review for declassification under this Act may remain
classified, only if the harm to national security that might
reasonably be expected from disclosure of such information
outweighs the public interest in disclosure of such
information.
(2) Default rule.--In the event of significant doubt
whether the harm to national security that might reasonably
be expected from the disclosure of information would outweigh
the public interest in the disclosure of such information,
such information shall not be classified or, in the case of
classified information under review for declassification,
declassified.
(3) Factors in decisions.--
(A) In general.--The President shall prescribe the factors
to be utilized in deciding for purposes of paragraph (1)
whether the disclosure of information might reasonably be
expected to harm national security or might serve the public
interest.
(B) Guidance.--In prescribing factors under subparagraph
(A), the President shall also prescribe guidance to be
utilized in applying such factors. The guidance shall specify
with reasonable detail the weight to be assigned each factor
and the manner of balancing among opposing factors of similar
or different weight.
(C) Process.--The President shall prescribe factors and
guidance under this paragraph at the same time the President
establishes categories and procedures under subsection (b)(1)
and subject to the notice and
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comment procedures set forth under subsection (b)(2).
(d) Written Justification for Classification.--
(1) Original classification.--Each agency official who
makes a decision to classify information not previously
classified shall, at the time of such decision--
(A) identify himself or herself;
(B) provide in writing a detailed justification of that
decision; and
(C) indicate the basis for the classification of the
information with reference to the written guidance produced
under subsection (b)(4)(B).
(2) Derivative classification.--In any case in which an
agency official or contractor employee classifies a document
on the basis of information previously classified that is
included or referenced in the document, the official or
employee, as the case may be, shall--
(A) identify himself or herself in that document; and
(B) provide a concise explanation of that decision.
(e) Declassification of Information Classified Under Act.--
(1) In general.--Except as provided in paragraphs (2), (3),
and (4), information classified under this Act may not remain
classified under this Act after the date that is 10 years
after the date of the original classification of the
information.
(2) Earlier declassification.--When classifying information
under this Act, an agency official may provide for the
declassification of the information as of a date or event
that is earlier than the date otherwise provided for under
paragraph (1).
(3) Later declassification.--
(A) In general.--When classifying information under this
Act, an agency official with original classification
authority over the information may provide for the
declassification of the information on a date that is up to
25 years after the date of original classification in
accordance with the guidance approved under subsection
(b)(4)(B)(ii).
(B) Postponement.--The actual date of the declassification
of information referred to in subparagraph (A) may be
postponed under paragraph (4)(D).
(4) Postponement of declassification.--
(A) In general.--The declassification of any information or
category of information that would otherwise be declassified
under paragraph (1) or (2) may be postponed if an official of
the agency with original classification authority over the
information or category of information, as the case may be,
determines, before the time of declassification for such
information otherwise provided for under paragraph (1) or
(2), as the case may be, that the information or category of
information, as the case may be, should remain classified.
(B) Procedure.--An official may not implement a
determination under subparagraph (A) until the official
obtains the concurrence of the Director of the Office of
National Classification and Declassification Oversight in the
determination.
(C) General duration of postponement.--Except as provided
in subparagraph (D), information the declassification of
which is postponed under this paragraph may remain classified
not longer than 15 years after the date of the postponement.
(D) Extended duration of postponement.--
(i) In general.--Subject to clauses (ii) and (iii), the
declassification of any information that would otherwise be
declassified under subparagraph (C) or paragraph (3) may be
postponed if an official of the agency with original
classification authority over the information determines that
extraordinary circumstances require that the information
remain classified.
(ii) Procedures.--An official may not implement a
determination under clause (i) until the official--
(I) obtains the concurrence of the Director of the Office
of National Classification and Declassification Oversight in
the determination; and
(II) submits to the President a certification of the
determination.
(iii) Review.--The President shall establish a schedule for
the review of the need for continued classification of any
information the declassification of which is postponed under
this subparagraph. Such information shall be declassified at
the earliest possible time after the termination of the
circumstances with respect to such information referred to in
clause (i).
(E) Concurrences.--A concurrence at the direction of the
Classification and Declassification Review Board on appeal
under section 4(c)(2) and a concurrence at the direction of
the President on appeal under section 5(a) shall be treated
as a concurrence of the Director of the Office of National
Classification and Declassification Oversight for purposes of
subparagraphs (B) and (D)(ii)(I).
(5) Approval required for declassification of
information.--Except as provided in this Act, no information
classified under this Act may be declassified or released
without the approval of the agency that originally classified
the information.
(6) Specification of declassification date or event.--Each
agency official making a decision to classify information
under this subsection shall specify upon such information the
date or event of its declassification.
(f) Declassification of Current Classified Information.--
(1) Procedures.--The President shall establish procedures
for declassifying information that was classified before the
effective date of this Act. Such procedures shall, to the
maximum extent practicable, be consistent with the provisions
of this section.
(2) Automatic Declassification.--The procedures established
under paragraph (1) shall include procedures for the
automatic declassification of information referred to in that
paragraph that has remained classified for more than 25 years
as of the effective date referred to in that paragraph.
(3) Notice and comment.--
(A) Notice.--The President shall publish notice in the
Federal Register of the procedures proposed to be established
under this subsection.
(B) Comment.--The President shall provide an opportunity
for interested persons to submit comments on the procedures
covered by subparagraph (A).
(C) Deadline.--The President shall complete the
establishment of procedures under this subsection not later
than 60 days after publishing notice in the Federal Register
under subparagraph (A). Upon completion of the establishment
of such procedures, the President shall publish in the
Federal Register notice regarding such procedures.
(g) Conforming Amendment to FOIA.--Section 552(b)(1) of
title 5, United States Code, is amended to read as follows:
"(1) (A) specifically authorized to be classified under
the Government Secrecy Reform Act of 1999 or specifically
authorized under criteria established by an Executive order
to be kept secret in the interest of national security and
(B) are in fact properly classified pursuant to that Act or
Executive order;".
SEC. 3. OFFICE OF NATIONAL CLASSIFICATION AND
DECLASSIFICATION OVERSIGHT.
(a) Establishment.--
(1) In general.--There is established within the National
Archives and Records Administration an office to be known as
the Office of National Classification and Declassification
Oversight (in this section referred to as the "Oversight
Office").
(2) Purpose.--The purpose of the Oversight Office is to
standardize the policies and procedures used by agencies to
assess information for initial classification and to review
information for declassification.
(3) Policy guidance.--On behalf of the President, the
Assistant to the President for National Security Affairs
shall provide policy guidance to the Oversight Office.
(4) Budget.--
(A) Consultation in preparation.--The Archivist of the
United States shall consult with the Assistant to the
President for National Security Affairs and the Director of
the Office of Management and Budget in preparing the annual
budget request for the Oversight Office.
(B) Presentation.--The annual budget request for the
Oversight Office shall appear as a distinct item in the
annual budget request of the National Archives and Records
Administration.
(b) Director.--
(1) In general.--There shall be a Director of the Office of
National Classification and Declassification Oversight who
shall be appointed by the President, by and with the advice
and consent of the Senate. The Director shall be the head of
the Oversight Office.
(2) Qualifications.--To the maximum extent practicable, the
President shall nominate for appointment as Director
individuals who have experience in policy relating to
classification and declassification of information, records
management, and information technology.
(3) Supervision.--The Director shall report directly to the
Archivist of the United States.
(4) Executive schedule.--Section 5315 of title 5, United
States Code, is amended by adding at the end the following:
"Director, Office of National Classification and
Declassification Oversight.".
(c) Personnel and Resources.--
(1) Transfer.--All personnel, funds, and other resources of
the Information Security Oversight Office are hereby
transferred to the Oversight Office and shall constitute the
personnel, funds, and other resources of the Oversight
Office.
(2) Interim director.--The Director of the Information
Security Oversight Office shall serve as acting Director of
the Oversight Office until a Director of the Oversight Office
is appointed under subsection (b)(1).
(d) Duties.--The Oversight Office shall--
(1) coordinate and oversee the classification and
declassification policies and practices of agencies in order
to ensure the compliance of such policies and procedures with
the provisions of this Act;
(2) develop and issue directives, instructions, and
educational aids and forms to assist in the implementation of
the provisions of this Act;
(3) develop a program of research and development of
technologies to improve the efficiency of classification and
declassification processes under this Act;
(4) determine whether or not information is classified in
violation of this Act and order that information determined
to be classified in violation of this Act be declassified by
the agency that originated the classification;
(5) determine whether an agency determination to postpone
the declassification of information under section 2(e)(4) is
consistent with the provisions of this Act;
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(6) review the proposed budgets of agencies for
classification and declassification programs and make
recommendations to the Office of Management and Budget as to
means of ensuring that such budgets provide sufficient funds
to permit agencies to comply with the requirements of this
Act;
(7) oversee special access programs consistent with its
other duties under this section;
(8) conduct audits and on-site reviews of agency
classification and declassification programs; and
(9) establish and maintain a Government-wide database on
the declassification activities of the Government, including
an unclassified version of the database available to the
public.
(e) Agency Cooperation.--
(1) In general.--Subject to the control and supervision of
the President, each agency shall provide the Oversight Office
such information and other cooperation as the Director of the
Oversight Office considers appropriate to permit the
Oversight Office to carry out its duties.
(2) Special access programs.--The head of an agency with
jurisdiction over special access programs may--
(A) limit access to such programs to not more than the
Director and one other employee of the Oversight Office; and
(B) upon the concurrence of the President, deny access by
the Oversight Office to any such program if the head of such
agency determines that such access would pose an exceptional
risk to national security.
(f) Appeals from Certain Decisions.--
(1) In general.--An agency may appeal to the Classification
and Declassification Review Board any declassification order
or determination under paragraph (4) or (5) of subsection
(d).
(2) Deadline.--An agency may appeal an order or
determination under paragraph (1) only if the agency submits
the appeal to the Board not later than 60 days after the date
of the order or determination, as the case may be.
(g) Protection of Information.--The Director of the
Oversight Office shall take appropriate actions to prevent
disclosure to the public of classified information that is
provided to the Oversight Office. Such actions shall include
a requirement that the staff of the Oversight Office possess
security clearances appropriate for the information
considered and reviewed by the Oversight Office.
(h) Annual Report.--
(1) Requirement.--Not later than March 31 each year, the
Director of the Oversight Office shall submit to Congress and
to the President a report on the compliance of agencies with
the requirements of this Act.
(2) Elements.--Each report under paragraph (1) shall--
(A) include a summary of the extent of the compliance of
agencies Government-wide with the requirements of this Act as
of the date of such report; and
(B) set forth an assessment of the compliance of each
agency with such requirements as of that date.
(3) Form.--Each report under paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
(4) Availability.--The Oversight Office shall make
available to the public the unclassified form of each report
under paragraph (1) on an Internet Web site maintained by the
Oversight Office.
SEC. 4. CLASSIFICATION AND DECLASSIFICATION REVIEW BOARD.
(a) Establishment.--There is established within the
Executive Office of the President a board to be known as the
Classification and Declassification Review Board (in this
section referred to as the "Board").
(b) Membership and Procedural Matters.--
(1) In general.--The Board shall consist of five members
appointed by the President, by and with the advice and
consent of the Senate, of whom--
(A) four shall be private citizens;
(B) two shall be officers or employees of the Federal
Government; and
(2) Qualifications.--
(A) Private citizens.--The members of the Board who are
private citizens shall be appointed from among individuals
who are distinguished historians, political scientists,
archivists, and other social scientists or who otherwise have
demonstrated expertise in matters relating to the national
security of the United States, records management, or
government information policy.
(B) Government employees.--The members of the Board who are
officers or employees of the Federal Government shall be
appointed from among such officers and employees who have
demonstrated expertise in matters referred to in subparagraph
(A).
(C) Change in employment.--Notwithstanding any provision of
paragraph (1), the commencement or termination of service as
an officer or employee of the Federal Government of an
individual appointed as a member of the Board under that
paragraph before such commencement or termination shall not
affect the continuation of such individual as a member of the
Board.
(3) Nominations.--
(A) Consultation.--In nominating individuals for
appointment to the Board, the President shall consult with
the Secretary of Defense, Secretary of State, Attorney
General, Assistant to the President for National Security
Affairs, Director of Central Intelligence, Archivist of the
United States, and Director of the Office of Management and
Budget.
(B) Limitation.--The President may not nominate for
appointment to the Board any individual who has previously
served as a member of the Board.
(C) Initial nominations.--The President shall make the
first nominations of individuals for appointment to the Board
not later than 120 days after the effective date of this Act.
(D) Bipartisan Representation.--Of the members of the Board
appointed under paragraph (1)(A), not more than tow shall be
of the same political party.
(4) Presiding Officer.--The President shall designate a
member of the Board appointed under paragraph (1)(A) to serve
as the Presiding Officer of the Board.
(5) Term.--Members of the Board shall be appointed for a
term of 4 years, except that of the members first nominated
for appointment to the Board under paragraph (3)(C)--
(A) two shall be nominated for a 4-year term (including the
member who shall be the Presiding Officer of the Board);
(B) two shall be nominated for a 3-year term; and
(C) two shall be nominated for a 2-year term.
(6) Vacancies.--An individual appointed to fill a vacancy
shall be appointed for the unexpired term of the member
replaced.
(7) Procedural matters.--
(A) Quorum.--A majority of the members of the Board shall
constitute a quorum, but a lesser number of members may hold
hearings.
(B) Rules and procedures.--
(i) Requirement.--The Board shall establish, and may from
time to time modify, such rules and procedures as the Board
considers appropriate to carry out its duties. Such rules and
procedures shall provide that a decision of the Board
requires a vote of a majority of the members of the Board.
(ii) Publication.--The Board shall publish its rules and
procedures in the Federal Register.
(iii) Initial rules and procedures.--The Board shall
establish its initial rules and procedures not later than 90
days after the date of initial meeting of the Board.
(c) Powers and Duties.--The Board shall--
(1) decide on appeals by agencies which challenge a
declassification order of the Office of National
Classification and Declassification Oversight under section
3(d)(4);
(2) decide on appeals by agencies which challenge a
determination of that Office not to concur in the
postponement of the declassification of information under
section 3(d)(5); and
(3) decide on appeals by persons or entities who have filed
requests for mandatory declassification review.
(d) Protection of Information.--The Board shall take
appropriate actions to prevent the disclosure to the public
of classified information that is provided to the Board. Such
actions shall include a requirement that the members and
staff of the Board possess security clearances appropriate
for the information considered and reviewed by the Board.
(e) Personnel Matters.--
(1) Compensation.--
(A) Compensation.--Each member of the Board who is a
private citizen shall be compensated at a rate equal to the
daily equivalent of the annual rate of basic pay prescribed
for level IV of the Executive Schedule under section 5315 of
title 5, United States Code, for each day (including travel
time) during which such member is engaged in the performance
of the duties of the Board.
(B) Travel expenses.--The members of the Board shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Board.
(2) Staff.--The Presiding Officer of the Board may, with
the concurrence of the Board, appoint such staff, including
an executive secretary, as the Board requires to carry out
its duties.
(3) Detail of government employees.--Any Federal Government
employee may be detailed to the Board without reimbursement,
and such detail shall be without interruption or loss of
civil service status or privilege.
SEC. 5. APPEAL OF DETERMINATIONS OF CLASSIFICATION AND
DECLASSIFICATION REVIEW BOARD.
(a) Appeal.--Subject to subsection (c), any agency may
appeal to the President a decision or other action of the
Classification and Declassification Review Board under
section 4(c).
(b) Deadline.--An agency may appeal a decision or other
action under subsection (a) only if the agency submits the
appeal to the President not later than 60 days after the date
of the decision or other action concerned.
(c) Finality.--A decision of the President on an appeal
under subsection (a) shall be final.
SEC. 6. PROHIBITIONS.
(a) Withholding Information from Congress.--Nothing in this
Act shall be construed to authorize the withholding of
information from Congress.
(b) Judicial Review.--Except in the case of the amendment
to section 552 of title 5, United States Code, made by
section 2(g), no person may seek or obtain judicial review of
any provision of this Act or any action taken under a
provision of this Act.
[[Page S402]]
SEC. 7. DEFINITIONS.
In this Act:
(1) The term "agency" means any executive agency as
defined in section 105 of title 5, United States Code, any
military department as defined in section 102 of such title,
and any other entity in the Executive Branch of the
Government that comes into the possession of classified
information.
(2) The terms "classify", "classified", and
"classification" refer to the process by which information
is determined to require protection from unauthorized
disclosure pursuant to this Act in order to protect the
national security of the United States.
(3) The terms "declassify", "declassified", and
"declassification" refer to the process by which
information that has been classified is determined to no
longer require protection from unauthorized disclosure
pursuant to this Act.
SEC. 8. EFFECTIVE DATE.
This Act and the amendment made by section 2(g) shall take
effect 180 days after the date of the enactment of this Act.
Mr. HELMS. Mr. President, I am pleased to join Senator Moynihan today
in introducing a bill that would for the first time place in statute
the government system for the classification of information. To date
this has been accomplished solely through executive order.
The statute is based on the recommendations contained in the report
of the Commission to Protect and Reduce Government Secrecy chaired by
my colleague Pat Moynihan, the senior senator from New York. The
Secrecy Commission achieved a unified report of recommendations--a feat
that should not be underrated, especially in Washington. The bill also
makes changes based on recommendations by the Government Affairs
Committee during its consideration of our legislation during the 105th
Congress.
The bill recognizes that over-classification can actually weaken the
protections of those secrets that truly are in our national interest.
All the same I am obliged to begin with a reiteration of the obvious--
that the protection of true national security information remains vital
to the well-being and security of the United States. The end of the
Cold War notwithstanding, the United States continues to face serious
and long-term threats from a variety of fronts. While communist and
anti-American regimes, such as North Korea, Cuba, Iran and Iraq,
continue to wage a war against the United States, new threats have
arisen as well. Indeed, there is even a growing trend of espionage
conducted not by our enemies but by American allies. Such espionage is
on the rise especially against U.S. economic secrets.
At first blush, a push to reduce government secrecy may seem at odds
with these increasing threats. I am convinced it is not. The sheer
volume of government "secrets"--and their costs to the taxpayers and
U.S. business--is staggering. In 1996 the taxpayers spent more than
$5.2 billion to protect classified information. We know all too well
from our own experiences that when everything is secret nothing is
secret.
Secrecy all too often then becomes a political tool used by Executive
Branch agencies to shield information which may be politically
sensitive or policies which may be unpopular with the American people.
Worse yet, information may be classified to hide from public view
illegal or unethical activity. On numerous occasions, I, and other
Members of Congress, have found the Executive Branch to be reluctant to
share certain information, the nature of which is not truly a
"national secret," but which would potentially politically
embarrassing to officials in the Executive Branch or which would make
known an illegal or indefensible policy.
I have also found that one of the largest impediments to openness is
the perverse incentives of the government bureaucracy itself in favor
of classification, and the lack of accountability for those who do the
actual classification. I strongly endorse the Commission's
recommendation of adding individual accountability to the process by
requiring a detailed justification of the decision to classify.
On the other hand, declassification decisions can be politicized.
Limited resources for declassification are used to declassify
information for political purposes. Only recently, in the case of
documents relating to U.S. activities in Central and South America the
Administration has made decisions to declassify documents at the
request of certain interest groups. As a result the resources for
routine declassification are being redirected to serve political ends.
This bill would serve to eliminate politicized declassification
decisions by requiring routine declassification and oversight by an
independent board.
I would add a note of caution regarding declassification, however. In
the course of the two years of its work, the Commission became very
interested in the declassification of existing documents and materials.
In a perfect world, if information remains relevant to true U.S.
national interests it should remain classified indefinitely.
Information that does not compromise U.S. interests and sources should
be made public. We all realize, however, that this is a tremendously
costly venture. In fact, the Commission was unable to come up with
solid data on the true cost of declassification.
In this era when Congress has finally begun to grasp the essential
need to reduce government spending and balance the budget, the issue of
balancing costs and benefits is an essential one. The financial costs
to the American taxpayers must be balanced against the necessity of the
declassification. The real lesson to take from the work of this
Commission is the need to redress for the future the problems of over
classification and a systematic process for declassification, so that
the costs and timeliness of declassification does not pose the same
economic and regulatory burdens on future generations. At the same
time, it may be too costly to declassify all of the countless
classified documents now in existence.
I hope the 106th Congress will complete the work of the 105th
Congress and bring government wide rationalization to the
classification process. It is an area where tough Congressional
oversight is long overdue.
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