Calendar No. 313
105th Congress Report
2d Session SENATE 105-165
_______________________________________________________________________
THE DISCLOSURE TO CONGRESS ACT OF 1998
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February 23, 1998.--Ordered to be printed
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Mr. Shelby, from the Select Committee on Intelligence, submitted the
following
R E P O R T
[To accompany S. 1668]
The Select Committee on Intelligence, having considered
original bill (S. 1668), which directs the President to inform
employees within the Intelligence Community that it is not
prohibited by law, executive order, or regulation or otherwise
contrary to public policy to disclose certain information,
including classified information, to an appropriate committee
of Congress, reports favorably thereon and recommends that the
bill pass.
PURPOSE OF THE BILL
The Disclosure to Congress Act (S. 1668) will ensure that
employees within the Intelligence Community are made aware that
they may, without prior authorization, disclose certain
information to Congress, including classified information, that
they reasonably believe is specific and direct evidence of: a
violation of law, rule or regulation; a false statement to
Congress on an issue of material fact; or gross mismanagement,
a gross waste of funds, a flagrant abuse of authority, or a
substantial and specific danger to public health or safety. The
Committee is hopeful that the legislation will 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. 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.
COMMITTEE ACTION
On February 11, 1998, on a vote on the motion to order the
bill reported favorably with a recommendation that the bill do
pass, nineteen Members of the Committee voted in favor and no
Members voted against.
BACKGROUND AND NEED FOR LEGISLATION
It is not generally known that the ``Whistle Blower
Protection Act'' does not cover employees of the agencies
within the Intelligence Community. See 5 U.S.C. Sec. Sec. 2301
et seq. 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.
Therefore, employees within the Intelligence Community are not
protected from adverse personnel actions if they choose to
disclose such information, irrespective of its classification,
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 security clearance, suspension without pay, or removal. See
Exec. Order No. 12,958, 60 Fed. Reg. 19825 (1995). Some types
of unauthorized disclosures are also subject to criminal
sanctions. See 18 U.S.C. Sec. Sec. 641, 793, 794, 798, 952
(1996); 50 U.S.C. Sec. 783(b) (1996).
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 * * *.'' Information Security Oversight
Office, General Services Administration, Classified Information
Nondisclosure Agreement (SF-312) Briefing Booklet, at 66. In
other words, the executive agency will decide what Members of
Congress may ``need to know'' to perform their constitutional
oversight functions. The President, in effect, asserts that he
has exclusive or plenary authority to oversee the regulation of
national security information.
In response to the Administration's position, the Select
Committee on Intelligence of the United States Senate reported
the Intelligence Authorization Act for Fiscal Year 1998 which
included a provision that specifically addressed this issue.
See S. 858, 105th Cong., 1st Sess. Sec. 306 (1997). The Senate
passed the bill by a vote of ninety-eight to one. Shortly after
the Senate vote, the Administration issued a Statement of
Administration Policy stating 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.
Section 306 directed the President to inform all Executive
Branch employees that disclosing classified information to an
appropriate oversight committee or to their Congressional
representative is not prohibited by any law, executive order,
or regulation or otherwise contrary to public policy if the
employee reasonably believes that the classified information
evidences a violation of any law, rule, or regulation; a false
statement to Congress on an issue of materialfact; or gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. This
provision was intended to ensure that Congress received information
necessary to fulfill its constitutional oversight responsibilities. It
was also intended to protect employees from adverse actions based on
what was heretofore considered an unauthorized disclosure to Congress.
The Committee intended disclosure to an appropriate
oversight committee to mean disclosure to cleared staff or a
member of the committee with jurisdiction over the agency
involved in the wrongdoing. Members or committee staff who
receive such information from an employee were to be presumed
to have received it in their capacity as members or staff of
the appropriate oversight committee. The Committee believed
that this presumption was necessary because Members and staff
are responsible for ensuring that the information is protected
in accordance with committee rules and that it is brought to
the attention of the leadership of the committee. The
President, by informing Executive Branch employees as directed
in section 306, would have authorized disclosure to the
appropriate oversight committee or member thereby recognizing
that these committees and members have a ``need to know'' the
information as required by current Executive Branch
restrictions on disclosure of classified information.
In conference, members of the House Permanent Select
Committee on Intelligence (HPSCI) and the Senate Select
Committee on Intelligence (SSCI) did not agree to include
section 306 as passed by the Senate. The Senate offered to
amend section 306, thereby significantly narrowing the scope of
the provision to cover only employees of agencies within the
Intelligence Community (the Senate passed version covered all
executive employees). The Senate amendment further narrowed the
provision by allowing disclosure only to committees with
primary jurisdiction over the agency involved (the original
language also allowed disclosure to a Member of Congress who
represented the employee).
The Chairman and Ranking Member of the House Permanent
Select Committee on Intelligence expressed concern over the
significant constitutional implications of such language. They
were also mindful of the Administration's veto threat as
expressed in the Statement of Administration Policy. The
Chairman and Vice Chairman of the Senate Select Committee on
Intelligence, in deference to their House colleague's concerns,
agreed to amend the provision to express a sense of the
Congress that Members of Congress have equal standing with
officials of the Executive Branch to receive classified
information so that Congress may carry out is oversight
responsibilities.
The managers decision not to include section 306 of the
Senate bill in the conference report, however, was not intended
by either body to be interpreted as agreement with the
Administration's position on whether it is constitutional for
Congress to legislate on this subject matter. The managers
actions were also not to be interpreted as expressing agreement
with the opinion of the Justice Department's Office of Legal
Counsel, which explicitly stated that only the President may
determine when Executive Branch employees may disclose
classified information to Members of Congress. The managers
asserted in their Conference Report that members
ofcongressional committees have a need to know information, classified
or otherwise, that directly relates to their responsibility to conduct
vigorous and thorough oversight of the activities of the executive
departments and agencies within their committees' jurisdiction.
Therefore, the President may not assert an unimpeded authority to
determine otherwise.
While the managers recognized the Chief Executive's derived
constitutional authority to protect sensitive national security
information, they did not agree with the Administration that
the authority is exclusive. Members of both committees also
agreed that whatever the scope of the President's authority, it
may not be asserted against Congress to withhold evidence of
misconduct or wrongdoing and thereby impede Congress in
exercising its constitutional legislative and oversight
authority. Therefore, the managers committed to hold hearings
on this issue and develop appropriate legislative solutions in
the second session of the 105th Congress.
The Senate Select Committee held public hearings on 4 & 11
February 1998 to examine the constitutional implications of
legislation such as section 306. The Committee heard from
constitutional scholars and legal experts on both sides of the
issue. Mr. Randolph D. Moss, Deputy Assistant Attorney General
from the Department of Justice Office of Legal Counsel
testified in support of the Administration's position that
section 306 and any similar language represents an
unconstitutional infringement on the President's authority as
Commander in Chief and Chief Executive. Mr. Moss asserted the
following:
(A) 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.
(B) 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.
(C) 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 delagee. Therefore, section 306 and any similar
provision is unconstitutional.
The Committee also heard Professor Peter Raven-Hansen, Glen
Earl Weston Research Professor of Law from the George
Washington University Law School and Dr. Louis Fisher, Senior
Specialist (Separation of Powers) from the Congressional
Research Service testify that the President's authority in this
area is not exclusive. Hence, these experts believed that
Congress already has authority to regulate the collection,
retention, and dissemination of national security information.
Professor Raven-Hansen and Dr. Fisher asserted the following:
(A) A claim of exclusive authority must be
substantiated by an explicit textual grant of such
authority by the Constitution.
(B) There is no express constitutional language
regarding the regulation of national security
information as it pertains to the President.
(C) The President's authority to regulate national
security information is an implied authority flowing
from his responsibilities as Commander in Chief and
Chief Executive.
(D) As the regulation of national security
information is implicit in the command authority of the
President, it is equally implicit in the broad array of
national security and foreign affairs 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 information
to Congress.
(E) Congress may legislate in this area because the
Executive and Legislative Branches share constitutional
authority to regulate national security information.
(F) The Supreme Court has never decided a case that
specifically addressed this issue.
(G) The provision is 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.
Following the public hearing on February 11th, the
Committee met to markup a modified version of section 306. One
amendment was offered by a member of the Committee and was
adopted unanimously. The bill as amended is explained in the
following section.
SECTION EXPLANATION
The bill has one section divided into subsections (a)
through (d). Subsection (a)(1) directs the President to take
appropriate actions to inform the employees of agencies covered
in subsection (d) and employees of contractors of such agencies
that the disclosure of information described in paragraph (2)
to individuals referred to in paragraph (3) is not prohibited
by law, executive order, or regulation or otherwise contrary to
public policy. In other words, thePresident is directed to
inform ``covered employees'' that it will not be considered an
``unauthorized disclosure'' if they provide certain information to
Congress, if that information is provided to the appropriate member and
the information falls within the specified categories.
Subsection (a)(1) does not, however, define the means by
which the President must implement this direction. The
Committee refrained from expressly stating the types of actions
that the President should take as we have in previous measures.
See, e.g., Counterintelligence and Security Enhancements Act of
1994, Pub. L. No. 103-359, Title VIII, Sec. 802(a), 108 Stat.
3435 (1994). The Committee has intentionally allowed the
President a great deal of latitude to implement this
legislation. The Committee does not, however, intend this
permissive approach to be interpreted as license to frustrate
its purpose by promulgating procedures that would in any way
impede an employee's ability or desire to bring this type of
information to Congress. Any procedures should be clearly
stated to eliminate any uncertainty for employees who wish to
disclose such information.
Paragraph (1)(B) further directs the President to inform
such employees that the individuals referred to in paragraph
(3) 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. See Brief for Appellees, American
Foreign Service Association v. Garfinkel, 488 U.S. 923 (1988)
(No. 87-2127). In the Garfinkel brief the Department of Justice
stated 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.'' Id at
16 (emphasis added).
Paragraph (1)(C) is intended to ensure that members receive
information only in their capacity as a member of the committee
concerned. The Committee is adamant that any information
received by a member of one of the appropriate committees be
protected in accordance with that committee's rules for
safeguarding classified material and be reported to the
committee's leadership. Accordingly, a member is not free to
accept covered information as a member of a committee
unrestrained by such rules or to withhold knowledge of the
information from the committee's leadership. The various
national security committees enjoy a long history of trust with
the Executive Branch and that record will be continued.
Paragraph (2) defines the type of information that an
employee may bring to Congress. It is intended to cover all
information in the covered categories, including classified
information. Paragraphs (2)(A) and (C) are taken nearly
verbatim from the text of the ``Whistle Blower Protection Act''
and are intended to have the same meaning. See 5 U.S.C.
Sec. 2302(b)(8)(A)(i)-(ii) (1994 & Supp. II 1996). The
Committee did slightly narrow the language, however, to cover
only flagrant abuses of authority. The Committee intended to
address only those abuses that are so objectionable as to
warrant the attention of Congress.
Paragraph (2)(B) is not found in the ``whistle blower''
statute and was added to ensure that information pertaining to
a false statement to Congress is brought to our attention. In
the interestof legislative efficiency, however, the Committee
is most concerned with those false statements that pertain to an issue
of material fact. The material facts of an issue are those facts that a
reasonable person would consider important in reviewing that particular
issue. Congress depends on the accuracy of the information provided to
it and when our oversight is based on false information, we must be
made aware of it even if the President would prefer to withhold it.
Paragraph (3) refers to the individuals to whom information
described in paragraph (2) may be disclosed. Although the
Senate Select Committee on Intelligence is composed, inter
alia, of members from the Committees on Appropriations, Armed
Services, and the Judiciary, we recognize that those committees
share jurisdiction with this Committee and each has as its
primary responsibility the oversight of some of the
departments, agencies or elements of the Federal Government to
which such information relates. As noted earlier, the
individuals to whom information may be disclosed was narrowed
significantly from section 306 to further ensure the protection
of the information.
Paragraph (4) recognizes the inviolability of the rule of
secrecy in grand jury proceedings. The Committee does not
intend this legislation to circumvent the obligation of secrecy
imposed by Rule 6(e) of the Federal Rules of Criminal Procedure
and therefore paragraph (1)(A) does not apply to such
information. The Committee does not believe, however, that
disclosures to Congress fall under the rubric of other statutes
that prohibit the disclosure of certain information. The
Congress is an entity of the federal government and is capable
of protecting such information in the same manner as an
executive agency or department. Accordingly, the Committee does
not view a disclosure to Congress as a disclosure outside of
the government.
Subsection (b) directs the President to submit a report to
Congress on the actions taken under subsection (a). The
Committee expects to see a report that describes any procedures
established or guidance given to the various agencies,
departments, or elements. If the President gives wide
discretion to agency heads, the Committee would also like the
report to address how each agency or department has implemented
this legislation.
Subsection (c) is intended to protect the integrity of
other reporting requirements enacted into relevant law.
Subsection (d) defines the covered agencies. These are the
agencies specifically exempted from the ``whistle blower''
statute. See 5 U.S.C. Sec. 2302(a)(2)(C)(ii) (1994 & Supp. II
1996).
ESTIMATE OF COSTS
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee attempted to
estimate the costs which would be incurred in carrying out the
provisions of this bill in fiscal year 1998 and in each of the
five years thereafter. The Committee determined that it would
be impracticable to estimate the exact costs because the method
by which the President will implement this bill is unknown.
While some of the provisions of the bill may increase the
administrative costs associated with promulgating guidance for
its implementation, the Committee believes that whatever course
the President chooses these costs will be minimal and can be
absorbed within existing levels of appropriations.
EVALUATION OF REGULATORY IMPACT
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.