National Intelligence Reform Act of 2004
CONGRESSIONAL RECORD
SENATE
Sept. 27, 2004
NATIONAL INTELLIGENCE REFORM ACT OF 2004
Mr. WYDEN. Without turning this into a bouquet-tossing contest, I will say how lucky I think we are to have Senator Collins and Senator Lieberman, who have long practiced good government, handling this legislation. This is going to be a long and arduous task and to have this bipartisan duet at the helm is what is going to make this possible. I have enjoyed working with them on this and so many other issues in the past. We are going to get this done. The country is going to be safer and stronger for it, and I am very grateful for the work of the Senator from Maine and the Senator from Connecticut.
Governor Kean, the chairman of the 9/11 Commission, said three-quarters of the classified material he reviewed for the Commission should not have been classified in the first place. I think Governor Kean's comments reflect the state of where we are with respect to how Government documents are classified today, and it is for that reason that a bipartisan coalition has spent a considerable amount of time on the Intelligence Committee. Senator Lott and Senator Snowe and I serve there now.
Senator Bob Graham, of course, chaired the committee, and the four of us, two Democrats, two Republicans, have teamed up so as to try to make sure that in this important reform legislation some common sense is brought to the way that information is classified for national security purposes.
The ability to make documents secret is one of the most powerful tools in our Government. It is a power wielded generously by those in 18 agencies that deal with intelligence. My concern is that the Senate could spend weeks debating flowcharts and organizational changes and moving the boxes around with respect to where people in the intelligence community sit, but if the underlying way in which information is classified is not reformed, it is going to be very hard to make information sharing throughout the intelligence community effective. Very little will have been accomplished if information continues to be classified for purposes of protecting somebody's political career rather than our national security or if classification decisions continue to deprive the American people of their ability to judge the effectiveness of their Government on national security matters.
The 9/11 Commission report says the need to restructure the intelligence community grows out of six problems. One of them, the Commission says at page 410, is that, in their words, "The intelligence community is too complex and secret."
The Commission states:
Over the decades, the agencies and the rules surrounding the intelligence community have accumulated to a depth that practically defies public comprehension. . . . Even the most basic information about how much money is actually allocated to or within the intelligence community and most of its key components is shrouded from public view.
The bipartisan amendment Senator Lott, Senator Bob Graham, Senator Snowe, and I offer today is premised on the belief that it is time to clear the fog of secrecy and that it is possible to do that so as to protect this country's national security. Our legislation establishes a three-person board with the President and the bipartisan leadership in the House and Senate each recommending one member, subject to Senate confirmation. Our board would have two tasks: first, to review and make recommendations on the standards and processes used to classify information for national security purposes, and, second, to serve as a standing body to act on congressional and certain executive branch requests to reexamine how a Government document has been classified.
As entities, from the traditional intelligence community to the Environmental Protection Agency, now have the power to classify documents, the board would look at national security classification across our Government. Its creation would give the Congress, for the first time, an independent body to which it can appeal a national security classification decision.
President Truman noted that the Nation's primary intelligence agency, the CIA, was created, "for the benefit and convenience of the President." But the United States cannot preserve an open and democratic society when one branch of Government has a totally free hand to shut down access to information. The lack of an independent appeals process for Congress, in terms of the view of the four of us, two Democrats and two Republicans, tips the scale too far toward secrecy for any administration, and our bipartisan group of four Senators seeks to correct that imbalance.
The 1946 Atomic Energy Act established the principle that some information is born classified. There are certainly important sources and pieces of information that must never be compromised. But over the years, millions and millions of documents that weren't born classified have inherited or adopted or married into a classification. Keeping information secret for political purposes or horse trading intelligence data, especially during this critical time, a time of heightened security, is unacceptable.
Our Government must begin to be more accountable to its citizens. Having all appropriate information about national security is essential to Congress's congressionally prescribed oversight role. Access to information about their own security is the people's right. It is time to stop hiding the facts they deserve to know. Our bipartisan proposal does just that in a fashion that protects America's national security.
According to the late Senator Moynihan, who was an expert on secrecy in Government:
. . . much of the structure of secrecy now in place in the U.S. Government took shape in just 11 weeks, in the spring of 1917, while the Espionage Act was debated and signed into law.
Eighty years later, Senator Moynihan would note that 6,610,154 secrets were created in just 1 year alone. In fact, only a small portion, or 1.4 percent, was created pursuant to statutory authority, the Atomic Energy Act. Senator Moynihan labeled the other 98.6 percent "pure creatures of bureaucracy," created via Executive orders.
The Secrecy Report Card issued in August by a coalition of groups including the American Society of Newspaper Editors found the American Government spent $6.5 billion last year creating 14 million new classified documents. This is a 60-percent increase in secrets since 2001. These numbers do not even include CIA documents. The Secrecy Report Card also points out that agencies are becoming more creative in their classification systems.
In addition to the traditional "Limited Official Use," "Secret" and "Top Secret," some agencies now have something called "Sensitive Security Information," "Sensitive Homeland Security Information," "Sensitive But Unclassified," or "For Official Use Only." It has gotten to the point where Mr. William Leonard of the National Archives Information Security Office-the gentleman who oversees classification and declassification policies; he is known to some as the secrecy czar-believes that the system defies logic in many respects. He has called today's classification system "a patchwork quilt" that is a result of "a hodgepodge of laws, regulations and directives." In reality, the Federal Government has so many varieties of classification that it can make Heinz look modest.
In Mr. Leonard's view, the classification system for national system has lost touch with the basics to the point that some agencies don't know how much information they classify or whether they are classifying more or less than they once did or whether they are classifying too much or too little.
The executive branch exerts almost total control over what should or should not be classified. The Congress has no ability to declassify material. So there is no self-correcting mechanism in the system. Even if Members of Congress wish to share information with constituents, it is so complicated for the Congress to release information to the public that no one has ever tried to use this convoluted process. The executive branch has a little-known group that can review classification issues, but it is seldom used and open only to executive branch employees and not to Members of Congress.
What all this means in practice is that with the thump of a stamp marked "Secret" some unelected person in the belly of a Federal building has prevented Americans from gaining access to information. That decision cannot be appealed, even by the Congress. There is no independent review of classification decisions by the executive branch. With no chance of unbiased review, classification decisions are ready and ripe for abuse. Agencies wishing to hide their flaws and politicians-and I emphasize this, Mr. President-of both political parties who wish to make political points can abuse the classification guidelines to their advantage. And four Senators, two Democrats and two Republicans, wish to change that.
I, for one, do not subscribe to the view that there is an inherent conflict between the executive branch's accountability to Congress and the American people on the one hand and the constitutional role of the President as Commander in Chief on the other. I believe that a balance can and must be struck between the public's need for sound, clear-eyed analysis and executive desire to protect the Nation's legitimate security interests.
I believe we can fight terrorism ferociously without limiting the rights of our citizens to information. That is what the sponsors of this legislation seek to do.
There should be no room in this equation I have described for the use of classification to insulate officials and agencies from political pressure. As a member of the Senate Intelligence Committee, I have had lengthy discussions with my colleagues on a bipartisan basis about how to strike such a balance. It is the view of Senator Lott, Senator Graham, Senator Snowe, and I that in proposing this amendment we have an opportunity to make the broad overhaul of the national security classification system and to do it in a way that will strengthen the overall reform effort that the Senate is working on.
Finally, the independent board would review and make recommendations on overhauling the standards and process used in the classification system for national security information. The board then submits proposed new standards and processes to both Congress and the executive branch for comment and review. It would then implement the new standards and processes once there has been full opportunity by the executive branch to comment. The board would then begin on an ongoing basis to implement a system, continue to review and make recommendations on current and new national security classifications subject to executive branch veto that must be accompanied by a public, written explanation.
The balance in this legislation ensures that the public and the Congress have access to an independent board for national security matters while ensuring that the Commander in Chief maintain the constitutional prerogative that the Commander in Chief must have with respect to military and foreign policy matters.
For far too long, the executive branch has adhered to the motto, "When in doubt classify." Withholding information to protect political careers and entrenched bureaucracies is a disservice to the American people. It is a perversion of a policy intended to save lives, a perversion that weakens our democracy, and one that could even endanger our people. It is time to throw open the curtains and let the sun shine on American democracy and on the governmental processes we utilize today.
That is what this amendment does.
I see both the chairman and ranking member in the Chamber. Both of them have had an opportunity to see this amendment. I know both of them have a lot on their plates as we try to deal with this important legislation.
I think I can speak for Senator Lott, Senator Bob Graham, and Senator Snowe in saying we are anxious to work with the two of them. I know staff has some ideas, some of which strike me as very good, for ways in which we can improve this legislation. I wrap up only by way of saying that I think, with the excellent work they have already done as relates to the organizational structure and the flowcharts and all of the things that we are going to be debating over the next, I hope, few weeks rather than months-but I only say that to maximize the changes which will be made organizationally-we need to find a new way to strike a balance between protecting the country's national security and the people's right to know. I think that balance is out of whack today.
If you look, for example, even at the exceptional work done by Senator Roberts and Senator Rockefeller with our committee's report on the Iraq situation with respect to intelligence, had Senator Roberts and Senator Rockefeller not dug in as aggressively as they have, my sense is that well over 50 percent of that report would have been classified. In fact, the most important sections would literally receive black ink. We have to do better. I think we can do it on a bipartisan basis. I think doing it will ensure that the important work Senator Collins and Senator Lieberman are steering the Senate to will be better. I am anxious to work with both of them and staff. They have both been very gracious as always. I know my cosponsors join me in saying that as we look at various ways to refine this, we are anxious to continue to work in a bipartisan way.
I yield the floor.