National Intelligence Reform Act of 2004

CONGRESSIONAL RECORD
SENATE
Sept. 29, 2004

NATIONAL INTELLIGENCE REFORM ACT OF 2004

Mr. WYDEN. Mr. President, I express my appreciation to both the distinguished Senator from Connecticut and the chairman of the committee, Senator Collins. As I said on Monday, the Senate is well served by having this bipartisan duo that has long practiced good government steering us on this important piece of legislation.

The Senator from Connecticut is absolutely right; the three of us have worked very cooperatively over the last few days. Senator Lott also has made a valuable contribution, as well as Senator Cornyn, Senator Dayton, and Senator Snowe. A bipartisan group of Senators has been concerned about this issue. I believe the legislative counsel's office will have the actual language to bring to the Senate very shortly, probably in 10 or 15 minutes.

With the agreement of the Senator from Connecticut, I will take a few minutes to outline what the distinguished Senator from Maine, the Senator from Connecticut, myself, Senator Lott, and our group have agreed to.

The ability to stamp a Government document secret is one of the most powerful tools in our Government. The backdrop for this whole debate was best summed up by Governor Kean, who did such a good job in chairing the 9/11 Commission, who said three-quarters of all the documents he saw associated with his work on the 9/11 Commission that were classified should not have been classified. The power to stamp, in effect, Government documents secret is now a power wielded by people in the belly of 18 Federal agencies where they now classify more than 14 million new documents each year. This is a power that costs taxpayers about $6.5 billion a year, and it is a power that is simply out of control.

Senators on both sides of the aisle recognize that the system used to classify information for national security purposes is broken. It has been the premise of our bipartisan group that it is possible to fight terrorism ferociously, aggressively, and at the same time make sure that the public's right to know information the public is entitled to is addressed.

When we look, for example, at the Senate Intelligence Committee-Senator Lott, Senator Snowe, Senator Bayh and I serve on that committee-had it not been for the exceptional work of Chairman Roberts and Senator Rockefeller, much of what we tried to do with respect to our bipartisan report on prewar intelligence would have simply been censored. It would have all been drowned in a sea of black ink. So what we need to do is bring some common sense to this area which is now a hodgepodge of laws and regulations and directives. We are now in a position to outline the changes we have agreed to in our legislation.

First-most importantly-this legislation establishes an independent body known as the independent national security classification board which would review existing or proposed classification of any document or material. They would, in effect, be part of an effort for the first time to ensure that there would be an independent board to which there can be an appeal of classification decisions. Although right now an executive agency has had an appeals body, it has been off limits to congressional requests. For the first time, there will be an independent board that will look at these classification issues and there will be a right of the Congress to appeal a decision.

The distinguished chair of the committee was not on the floor, but I want to express while she is here my appreciation to her. What this has been all about from the very beginning is not a Democratic or Republican issue.

This has been about righting the imbalance between the executive branch and the legislative branch with respect to classification decisions. That is what we have been able to do. It ensures that any President's prerogatives as Commander in Chief are maintained. That is essential with respect to national security issues.

We will also have a chance to bring some real independence to the process of how Government documents are classified by ensuring that for the first time there is an independent route to have a classification decision reviewed.

That process will come after we have had a top-to-bottom review of the standards and processes used to classify information. The chair of the committee and I have talked about this in the past. What has been striking is we have never even done a review of the processes that are now used to classify documents. People such as those who run the National Archives have said that has been a factor in our having such a chaotic system.

So for the first time, again, Congress would have input into the scope of the review that would take place with respect to how Government documents are classified as well as the guidelines or standards that would be issued as a result of the review.

The independent national security classification board the amendment establishes would assume the duties of a group now known as the public interest declassification board. The new board would be made up of nine individuals, five of whom are appointed by the President and four of whom are appointed by the Senate and the House leadership. This is an effort to try to maintain a new kind of balance between the legislative branch and the executive branch.

In order to make sure that balance is maintained over time, the new board may recommend changes in the classification of all or portions of documents, but the President does not have to accept them. However, the key feature here is, if the President chooses not to accept a recommendation of the independent national security classification board, the President would have to submit to Congress in writing the justification for a decision not to implement the recommendation.

To reiterate, there would be an independent body to which Congress can appeal national security classification decisions, but at the same time, if the President doesn't see it in the same way the independent board does, the President, as Commander in Chief, still has the power to exercise the constitutional prerogative as the President determines, but for the first time it would have to be done in writing. I 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 one hand and the constitutional role of the President as Commander in Chief. We have long needed a balance in this area, a balance between the public's need for sound, clear-eyed analysis, and the executive's desire to protect the Nation's legitimate security interests.

In my view, there is no room in this equation for the use of classification to insulate officials and agencies from politics. That was essentially the motivation that got Senator Lott and Senator Snowe and a bipartisan group of us in the first place. We have seen this abused again and again.

Senator Moynihan did exceptional work years ago, documenting how so many documents have been classified largely because they were trying to provide political cover rather than protection for this country's national security. Senator Moynihan was a mentor to me because when I came to the Senate, I said I was interested in making changes.

Senator Collins has been very helpful. She has also been helpful on some of the other issues we will take up in the course of this legislation, particularly the data mining area, where she and Senator Lieberman have a great interest as well.

But Senator Lott, Senator Bob Graham, Senator Cornyn, Senator Snowe-the group who worked on this issue-are very appreciative of the help we received from the chair and the ranking minority member.

This amendment involves millions of Government documents. It involves more than $6 billion that is spent on the classification system each year.

I think we are starting now to lift this kind of fog of secrecy-changing a classification system that rewards secrecy and discourages openness. We will have the amendment actually before the Senate probably in a few minutes. In the interest of time-I know the hour is late and Senators have amendments-I wanted to speak about this, and I wanted to describe what it was that we have agreed to.

Senator Collins's staff and Senator Lieberman's staff have put in a lot of hours with us over the last few days. I am very appreciative and particularly pleased that it would be possible to make these kinds of changes. Senator Moynihan was right years ago when he advocated a process that brought some real independence and a right of appeal to a classification decision. The amendment we will offer tonight does just that.

I see the distinguished chairman of the committee in the Chamber. I yield the floor at this time.
BREAK IN TEXT

Mr. WYDEN. Mr. President, I will be very brief. Again, I express my appreciation to the chair and ranking minority member. The chair made an important point with respect to the executive branch. Clearly, no President, no executive branch is going to ever hold a rally in favor of this kind of idea.

I think the Senator mentioned Senator Lott. Senator Lott has been invaluable from the very beginning. He said we just have to build in-whether it is Democrats or Republicans-a new sense of independence. I have tried to say that there is no question in my mind, whether it was a Democratic administration or a Republican administration, what you are talking about are human beings who I think inherently are going to be concerned about something coming out. So out comes the stamp and something is marked "classified," and by the time the rubberstamp program is done, you have millions of documents classified in our country for reasons that have nothing to do with national security.

The Senator from Maine has summed it up very well. I am sure we are going to continue to hear from the administration as this is debated in the Senate and in the House. I do think we have struck a balance that ensures that by giving the President, in effect, the first word on a classification decision, through their appointees having the ability to classify a Government document and, in effect, the last word on a subject, because the independent board makes the recommendation to the President, if the President decides he doesn't want to go along with the independent board, they get the last word by stating in writing why they think the independent board is off base. I think that is the kind of balance between the executive branch and the legislative branch that we ought to have.

What pleases me is tonight this is the end of the line for a classification system that, in effect, encourages secrecy, discourages openness, and I am glad a bipartisan effort could have put all this time into it. I think we will have the amendment over here quickly. With the concurrence of the chair and the ranking minority member, it is not my intent to ask for a recorded vote. I think we can do it on a voice vote.

I yield the floor.