Hearing of the Senate Select Committee on Intelligence- Congressional Oversight

Interview

Hearing of the Senate Select Committee on Intelligence- Congressional Oversight

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SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Chairman.

Thank you, gentlemen, for coming yet again before us. I appreciate it.

I'd like to talk with you for a minute about classification. We deal with classified information all the time. You are very familiar with dealing with classified information. It puts us at a very considerable institutional disadvantage.

The executive branch classifies and to a large extent declassifies at will. In fact, many executive officials who we deal with just say something publicly and that's not a leak, that's not a security breach, that's a declassification. If we were to do it, there'd be FBI agents crawling around and looking at us and seeing if we'd committed treason. That's a very considerable disadvantage to be at.

The classification function -- or the classification system -- I think impedes oversight.

Congressman Roemer, you mentioned a quote from Woodrow Wilson. I don't have the words in mind exactly, but I think you said the informing function is to be preferred over even the lawmaking function? Well, if something's classified, I may know it but I can't inform, so that function is totally disabled to the extent that that piece remains classified.

And it also takes away a piece that exists in our regular oversight function which is that one senator can usually make a difference by just going public with something, by just raising hell with something, by just being a thorn in somebody's side. Because you can't go public, it takes a majority of this committee to get any action going, and I don't think that the intelligence community is unaware of that fact.

I recognize that there is a significant security value to classifying national security information. On the other hand, there's a balance between that and the accountability value that oversight creates. And the judge in that balance is exclusively at this stage, it seems to me, to be the executive branch, which makes it, again, very, very one-sided.

And my experience is that things are wildly over-classified. I have read things on the front page of The New York Times, come into this committee and read them in deeply classified documents. You know, thanks a bunch. That's really not very helpful. I already knew that.

We have just been shown various legal opinions, and there are elements of them that I would like to talk about and I've asked the administration to allow me to talk about them. They are legal theories. You could take that legal theory and you could put it in any law journal in the country and it would have absolutely no meaning to anybody. It's totally without classification merit, and yet it is classified to the full depth of the underlying document out of which it comes.

So once again, we are disabled. And I do not think that the administration is unaware of this imbalance and is unaware of the authority that this imbalance gives us with respect to this whole issue of classification.

What structural recommendations might you have to enable us to fight back through this? Because the day-to-day tide of just, you know, they classify, they classify, now you start -- it's weeks trying to fight your way back to get three little phrases unclassified. It's a real uphill struggle, and I think it impedes -- I feel it as a huge imposition on my ability to be an effective senator and effective member of this committee.

MR. HAMILTON: Well, you've learned a lot more about the classification system early on than I did. It took me a long time to figure out how you get jacked around because of the classification system.

He who controls information has the power in government. And the executive branch knows they control the classification process, that the Congress can't do very much about it, and it is an enormous tool in their hands.

I think we classify way too much information, and we declassify way too little. It's a serious problem. We are stacking up warehouses full of classified information day after day after day, and it's hugely expensive to classify all that information.

Now, one of the problems is the incentives. Certain officers in the United States government are given the authority to declassify -- secretary of State. Well, the secretary of State doesn't sit around and say this document is secret and this document is not secret. She delegates that responsibility. She delegates it way down the line, and the incentives work so that it is safe to classify when in doubt. And so they sit there and they stamp everything classified. (Laughs.) And we just keep piling it up.

I don't --

SEN. WHITEHOUSE: If I might add, Congressman Hamilton, unless and until it becomes useful --

MR. HAMILTON: To them.

SEN. WHITEHOUSE: -- to the administration's rhetoric --

MR. HAMILTON: That's correct.

SEN. WHITEHOUSE: -- to declassify their side of the argument, while leaving your side of the argument classified.

MR. HAMILTON: That's right. And you're put at a huge disadvantage because of that.

I don't know -- there is a way, I think I remember that there is a way for the Congress to declassify information, but as I recall, it has never been used. It takes a --

SEN. WHITEHOUSE: Act of Congress?

MR. HAMILTON: -- very complex process. It takes a vote, I think, in both houses and it just has never been used.

I think the whole area of classification needs examination and a new framework has to be developed to deal with it or you are going to be continually at this disadvantage. I don't have any doubt in my mind the executive branch -- not just this administration, but any administration -- uses it to their advantage time and time again, puts you at a disadvantage, and there's not very much you can do about it.

MR. ROEMER: Senator, I just want to say that on the 9/11 commission, we made two very, very strong recommendations to your point.

One was that there is a gross over-classification of information and secondly, there's an underutilization of open sources, and we recommended addressing both, that working with Congress and working with other entities in the executive branch and IGs that there be a way of declassifying this information and doing it in an orderly fashion, in a regular fashion, viewing that information and getting it out.

And then the second part was that there's a lot of open-source information that we get access to that we don't utilize appropriately enough and quickly enough in the intelligence community.

SEN. WHITEHOUSE: Thank you, Mr. Chairman.

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