Restrictions on Unclassified Documents

Floor Speech

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Mr. GRASSLEY. Mr. President, today I want to again discuss the unnecessary restrictions on unclassified documents from the FBI's investigation of Secretary Clinton.

By way of background, on September 12, I came to the floor and gave a speech about the FBI improperly restricting unclassified documents as if they were actually classified. Since that speech, the FBI Director has continued to talk about transparency, as transparency should be talked about because the public's business ought to be public, and when there is transparency, there is accountability in government.

Behind the scenes, the FBI won't provide documents to the Senate Judiciary Committee unless we agree to very strict controls and strict secrecy. The FBI doesn't want the committee or the committee staff talking about what is in these documents to anyone, not even privately with witnesses and their attorneys.

Today, I personally spoke with Director Comey about the terms his staff is insisting on as a condition for providing the Clinton investigation documents. I want to be clear with the people of Iowa and the American public about what I told him and what my position is as chairman of the Senate Judiciary Committee, which is responsible for oversight of the FBI.

The committee did not agree to any conditions before the first document delivery last month. In fact, nobody at the FBI, Senate security, or Senate leadership consulted with me as chairman of that committee before accepting the documents addressed to the Judiciary Committee. Still, we honored those limits in good faith anyway while we tried to get the unclassified material separated from the classified material. We honored the limits even though we were not obligated by any legal restriction or agreement.

The controls of these documents are overkill for this kind of unclassified material. The access controls make it unnecessarily difficult to use documents and to follow up on the information in those documents.

The most objectionable restriction is that we cannot talk about the content of the documents with witnesses and other third parties, such as their counsel, even if we do it in a nonpublic way, and that substantially interferes with the Senate's ability to continue its constitutional oversight of the executive branch. So the majority leader and I each wrote to Director Comey asking for a separate set of unclassified documents. Director Comey did not answer that letter. Then the FBI released, through the Freedom of Information Act, virtually all of the same unclassified material that it was asking the Senate to treat as if it was classified.

Releasing as much as possible to the public is the right thing to do, and I very much appreciate that Director Comey is complying with his legal obligation for transparency under the Freedom of Information Act.

But these document controls imposed before the public release make it look as if the FBI is trying to muzzle Congress and keep us from working with the information until after the FOIA process is completed.

So what is Congress forced to do? Congress has to wait in line behind FOIA requesters before we get access to information in a way that we can actually use it as followup for our investigation. The way this process is working sets a very dangerous precedent that could undermine transparency, and transparency is essential for accountability in government.

Frankly, this whole process is an end run around our constitutional oversight responsibility. If an agency wants to slow-walk Freedom of Information requests and give unclassified information to Congress with all kinds of strings attached to prevent us from using it, it could easily thwart oversight and accountability for months or even years.

I cannot agree to document controls that prevent the committee from doing its job, and the FBI should not ask me to do that.

We actually offered not to publicly disclose the contents of the documents and to treat them as confidential under Senate rules. Why is that not enough for the FBI to provide documents before the Freedom of Information process is complete so that we can use those very same documents in privately questioning witnesses?

All 100 Senators need to consider the consequences of allowing the executive branch to unilaterally impose restrictions on unclassified information like this. We must protect the independent powers of the Senate from the executive branch overreach.

Mr. President, I yield the floor.

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