FAS Note: Following are excerpts from the Senate Intelligence Committee report on the FY 1998 intelligence authorization bill. Click here for a copy of the full report.
Calendar No. 74
105th Congress Report
SENATE
1st Session 105-24
_______________________________________________________________________
AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 1998 FOR THE INTELLIGENCE
ACTIVITIES OF THE UNITED STATES GOVERNMENT AND THE CENTRAL INTELLIGENCE
AGENCY RETIREMENT AND DISABILITY SYSTEM AND FOR OTHER PURPOSES
[excerpts on classification and related issues]
_______
June 9, 1997.--Ordered to be printed
_______________________________________________________________________
Mr. Shelby, from the Select Committee on Intelligence, submitted the
following
R E P O R T
[To accompany S. 858]
[...]
Providing intelligence to the warfighter: The Khamisiyah experience
The Khamisiyah experience revealed the need for the
Intelligence and Defense Communities to improve the provision,
handling, and use of intelligence information during a crisis
situation. The Select Committee on Intelligence has undertaken
an investigation into Intelligence Community warnings to the
U.S. Army about chemical warfare agents at Khamisiyah, Iraq, in
1991 and suspicions that U.S. forces conducting demolition
activities to the site may have been exposed to Chemical
Weapons (CW) agents. Our preliminary review indicates
substantial mismanagement and lack of communication among
elements of the military and the Intelligence Community
regarding information and warnings provided on Iraqi CW
facilities, including Khamisiyah, as well as in the use made of
this information. Intelligence support associated with
Operations Desert Shield and Desert Storm, particularly in the
area of information distribution and analysis, was often
spotty, inconsistent, and slow. In addition, there were
problems with multiple databases; inconsistent foreign language
place names; limited sharing of sensitive but vital
information; and incomplete searches of files in preparing
lists of known or suspect CW facilities in Iraq. The Committee
addresses the problem of inconsistent place names in Section
308 by directing the Director of Central Intelligence to issue
guidelines to ensure the use of uniform spelling of foreign
names and places and the uniform use of geographic coordinates.
This should alleviate the problem of locating geographic places
when searching intelligence reports, products, and databases in
the future.
The Committee directs the Director of Central Intelligence
to submit to the Senate Select Committee on Intelligence, the
Senate Committee on Armed Services, and the Senate Defense
Subcommittee on Appropriations, no later than March 1, 1998, a
report that identifies the specific actions that have been
taken or are being taken to enhance cooperation between
Department of Defense and the Intelligence Community by
improving the provision, handling, and use of intelligence
information in preparation for, during, and after battle. Such
a report shall include those steps that intelligence agencies
are undertaking to reconcile information in databases in order
to eliminate confusion over potential targets (facilities and
other sites). It shall also include a review of how
intelligence components handle sensitive information and of
their procedures for deciding how and what vital information to
share with others. Further, the report shall contain an
enumeration of those steps that intelligence agencies are
undertaking to ensure that information searches are more
thorough in order to provide military commanders on the ground
with complete and timely information.
[...]
Ensuring flow of information to congress, policymakers, and the public
The most effective intelligence capability in the world is
worthless if the information collected is not provided to the
people who need it. Consumers of intelligence include not only
the warfighters and policymakers, but also the Congress and the
American public. A key issue in this regard is the handling of
classified information. The Committee is concerned that
insufficient priority is attached to ensuring a thorough review
of intelligence so that families concerned about the murder of
a loved one overseas and the general public receive information
the disclosure of which no longer threatens national security.
There is also a risk that over-classification or undue
restrictions on dissemination of intelligence information
within the executive branch could prevent information from
reaching the policymakers who need it to reach informed
decisions. In addition, the Committee is concerned about the
impact of classification on Congress' ability to learn from
federal employees about wrongdoing within executive agencies
and departments.
The Committee is reviewing the findings and recommendations
of the report by the Commission on Protecting and Reducing
Government Secrecy released in March 1997. The twelve person
bi-partisan Commission spent two years investigating how the
U.S. Government classifies and declassifies national security
information, grants security clearances, and protects
information on automated systems. The Committee will examine
the feasibility of implementing the Commission's
recommendations in the Intelligence Community and intends to
play an important role in the Senate's consideration of
legislation regarding this issue.
Providing information to victims and victims' families
The Committee recently heard from the families of several
Marines who were murdered in a terrorist attack in Zona Rosa,
El Salvador, in 1985. A common refrain in their testimony was
concern about how little information they received from their
government regarding the attack and its perpetrators. It was
from network television, for example, that at least one family
first learned of the attack. Several families learned, years
later from a television broadcast, that the likely mastermind
of the attack had been brought into this country through
official U.S. Government (USG) channels. The Committee has
pressed the executive branch to provide these families with as
much information as possible, but eleven years is a long time
to wait. Similar frustration was expressed when the Committee
heard during the last Congress from Americans who had lost
their loved ones to violence in Guatemala. Subsequently, the
Administration did establish a focal point on the Guatemala
issues and this proved helpful to the families trying to
negotiate through the maze of bureaucracies in search of
relevant information.
The Committee believes it is in the national interests of
the United States to provide information regarding the murder
or kidnaping of U.S. persons abroad to the families of the
victims. Moreover, given the difficulty inherent in identifying
all relevant information that might be held by disparate
elements of the government, and the likely resistance to
providing information that is currently classified, the
Committee believes this important responsibility must
ultimately be vested in a cabinet-level official.Therefore, the
Committee has adopted a provision requiring the Secretary of State to
ensure that all appropriate actions are taken within the USG to
identify promptly all relevant information and to make it available to
families to the maximum extent possible without seriously jeopardizing
sensitive intelligence sources and methods or other vital national
security interests. It is the Committee's expectation that the
Secretary of State will act as an advocate for the families in the
inevitable interagency debates regarding how much information can be
disclosed.
In order to improve the process for handling classified
information in such a way that declassification can be
accommodated efficiently, the Committee is providing additional
funds to support the CIA's Declassification Factor (CDF). The
Committee directs the DCI to review the current
declassification polices and programs within the Intelligence
Community and recommend measures to consolidate programs,
evaluate agency performance, prioritize efforts, and provide
adequate personnel and financial resources. The DCI's findings
and recommendations should be provided to the intelligence
oversight committees no later than September 1, 1997.
Standardizing information control systems and markings
The Committee commends the steps the CIA has taken to
improve classification management practices, including efforts
to make classifiers more accountable for their actions. Another
important aspect of classification policies and procedures is
information control systems and markings. Efforts to ensure
that intelligence is appropriately disseminated and that
information vital to the Nation's security is kept secure and
all other information is ultimately released to the public will
be enhanced by standardizing information control systems and
markings. The Controlled Access Program Oversight Committee
(CAPOC), as a part of the Community Management Staff, is
leading an interagency project jointly with the Security Policy
Board and the Intelligence System Secretariat to standardize
guidance for the principle Sensitive Compartmented Information
control systems and related classification and security
markings. This project should result in improved consistency of
compartmentation and classification management across
intelligence disciplines and make an important contribution to
interoperability among automated information systems in the
Intelligence Community. The Committee urges the DCI to assign
resources and priority attention to completion of updated
classification guides and a unified list of compatible
markings. In addition, the Committee encourages the DCI to
incorporate into this effort other CIA collection disciplines.
The Committee commends the efforts of the CAPOC to keep the
Committee informed of its activities. The DCI is directed to
review the activities and recommendations of the CAPOC and
notify the Congressional Intelligence Committees if legislation
is necessary to further standardization and enhance oversight
of these controlled access programs.
Disclosures of classified information to Congress
The Committee is also concerned that executive branch
policies on classified information could interfere with its
ability to learn of wrongdoing within the elements over which
it has oversight responsibility. The Committee's concern has
been heightened by its review of executive branch opinions in
this area, most recently articulated in a December 5, 1996
letter from the Director of Central Intelligence informing a
State Department employee who was accused of having revealed
sensitive classified information to a Member of Congress of the
decision to deny him access to Sensitive Compartmental
Information. The letter stated that "[n]either a security
clearance, nor access to SCI give an individual the right or
authority to make unilateral decisions to disclose classified
information to others, including to cleared Members of
Congress.'' Without addressing the merits of that particular
decision or attempting to resolve the factual disputes in that
case, the Committee noted in a letter to the Acting DCI on
January 3, 1997, that it was troubled by the reasoning
underlying the decision because of its potential impact on the
ability of the intelligence oversight committees to ensure they
are informed of possible wrongdoing.
The Committee is particularly concerned that federal
employees may view the decision or other relevant statements by
elements of the Executive Branch, including opinions from the
Department of Justice, to mean that there are no circumstances
under which they can bring information to Congress that they
believe evidences wrongdoing if to do so requires disclosure to
Congress of classified information.
The Committee fully appreciates the need to carefully
protect national security information, particularly information
the disclosure of which might reveal sensitive intelligence
sources or methods. Indeed, the select committees for oversight
of intelligence were established in part to balance that need
for protection with the equally compelling need for Congress to
have access to information necessary for effective oversight.
Moreover the Committee has worked closely with the Intelligence
Community to establish appropriate procedures for the routine
provision of intelligence information to the committees.
However, it is essential that where these standard procedures
fail to get the necessary information to Congress, for example,
because the wrongdoing involves the very individuals who would
have to authorize the disclosure or the authorization is not
forthcoming, then employees must have an alternative.
The Committee has included in this bill a provision
designed to ensure that Congress receives information necessary
to fulfill its constitutional oversight responsibilities. The
bill directs the President to issue guidance for all executive
branch employees making it clear that disclosures of classified
information to appropriate oversight committees or the
employee's own Congressional representative is not prohibited
by any law, executive order, regulation, or policy if the
employee reasonably believes that such information evidences a
violation of any law, rule, or regulation; a false statement to
Congress on an issue of material fact; or gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
Disclosure to an appropriate oversight committee means
disclosure to cleared staff or a member of the committee with
responsibility for the agency involved in the wrongdoing in
their capacity as staff or committee member. Committee staff or
members who receive such information from an employee are
presumed to have received it in their capacity as members or
staff of the appropriate oversight committee and are
responsible for ensuring that the information is protected and
brought to the attention of the leadership of the committee or
its staff directors.
Executive branch opinions note that Executive Order 12356
on classification requires that classified information be
disclosed only to a person with the appropriate clearance and a
"need to know.'' Members of Congress are cleared by virtue of
the election to office. This provision recognizes that, at a
minimum, the committee with primary oversight jurisdiction over
the elements allegedly engaged in wrongdoing and the member of
Congress representing the employee have a need to know the
information and such disclosure is consistent with the
Executive Order.
Notification of Congress
To conduct effective oversight the Committee must also
receive notification of intelligence activities in a timely and
complete fashion. Section 502 of the National Security Act of
1947 requires that the Committees be informed of all
intelligence activities including any significant anticipated
intelligence activity as well as any significant intelligence
failure. In several cases the Committee has received notice
well after the fact and follow-up requests for further
information have not been responded to promptly and completely.
The Committee reaffirms the requirement that notification occur
in advance of the activity if it is anticipated or foreseeable.
Where there is not time to provide written notice in advance,
or where the event was not foreseeable, immediate verbal notice
will suffice until written notice is provided; written notice
should be provided within five business days. Follow-up
requests from the Committee for additional information and/or
supporting documentation regarding a notification must be
addressed promptly and completely.
[...]
Section 306 directs 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,
regulation, or policy; provided, that 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 material fact; 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 is
intended to ensure that Congress receives information necessary
to fulfill its constitutional oversight responsibilities.
Disclosure to an appropriate oversight committee means
disclosure to cleared staff or a member of the committee with
jurisdiction over the agency involved in the wrongdoing in
their capacity as staff or a committee member. Members or
Committee staff who receive such information from an employee
are presumed to have received it in their capacity as members
or staff of the appropriate oversight committee. Members and
staff are responsible for ensuring that the information is
protected and brought to the attention of the leadership of the
committee or its staff directors.
The President, by informing executive branch employees as
directed in this provision, will make it clear that disclosure
to the appropriate oversight committee or member is authorized,
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.
Section 307 expresses a sense of Congress that it is in the
national interest of the United States to provide information
regarding the murder or kidnaping of United States persons
abroad to the families of the victims. Moreover, Congress
believes that the responsibility for providing such information
is sufficiently important that this provision vests it in a
cabinet-level official. This provision requires the Secretary
of State to ensure that the United States Government takes all
appropriate actions to identify promptly all relevant
unclassified and classified information in the possession of
the United States Government. The provision further requires
the Secretary of State to ensure that all unclassified
information is made available to the victims' families. With
respect to classified information, this provision directs the
Secretary of State to work with the Director of Central
Intelligence to release all relevant information that would not
jeopardize intelligence sources or methods, or vital national
security interests. If the Secretary of State and the Director
of Central Intelligence determine that intelligence sources or
methods would not be jeopardized and no vital national security
interest would be compromised by the release of classified
information, this provision directs the Secretary to release
that information to the appropriate recipient. The Committee
realizes that there will be interagency disagreement about what
should or should not be released under this provision. When
such disagreements arise, the Committee expects the Secretary
of State to act as an advocate for the families.
Section 308 addresses the Committee's concern that
intelligence reporting and analysis lacks standards for foreign
names and places. Recent reporting suggests that U.S. troops
may have received inadequate intelligence warnings in the Gulf
War because of inconsistent references to locations in Iraq.
These inconsistencies may have contributed to the possible
exposure of U.S. military forces to chemical agents released
during the destruction of Iraqi weapons caches.
Intelligence databases maintained by various entities
within the intelligence community are a critical national
resource. The Intelligence Community must standardize the names
and places in each database to allow for effective and
consistent support for war fighters and national security
policy makers. This provision calls on the DCI to conduct a
survey of standards currently in place throughout the
Intelligence Community and to issue guidelines for community-
wide standards. The DCI is further directed to report the
results of this survey, no later than 90 days after the
enactment of this Act, and provide a copy of the guidelines to
the Intelligence Committes no later than 180 days after the
enactment of this Act.
[...]